JUDGMENT :

1. Sri W.H.Khan, Senior Advocate, assisted by Sri J.H.Khan, learned counsel for appellants is present. None has appeared on behalf of respondents though this appeal has been called in revise. Since appeal is old one, relates to the year 1978, hence I proceed to hear and decide the same ex parte.

2. This is defendants' appeal under Section 100 of Code of Civil Procedure (hereinafter referred to as “C.P.C.”) arising from judgment and decree dated 01.6.1978 passed by Sri I.P.Singh, Vth Additional District and Sessions Judge, Saharanpur, in Civil Appeal No.337 of 1976 dismissing the same and confirming judgment and decree dated 18.9.1976 passed by Sri R.C.Pandey, Civil Judge, Saharanpur decreeing Original Suit No.42 of 1972.

3. Appeal was admitted vide order dated 17.7.1978 on the substantial questions (A) and (D), which read as under :

“A. Whether right of pre-emption is barred by the Constitution of India as it imposes an unreasonable restriction to hold the property?

D. Whether plaintiff was entitled to pre-emption even when he did not perform the necessary Talabs according to law.”

(emphasis added)

4. The facts giving rise to present appeal are that Original Suit No.42 of 1972 was filed by Tahir Husain, sole plaintiff-respondent (hereinafter referred to as “plaintiff”) against Mohammad Alim and Mohammad Arif, sons of Zinda Hasan, impleaded as defendants 1 and 2 and Mst. Naimat (Niyamat) Ilahi, widow of Sheikh Habib Ahmad, (defendant 3), in the Court of Civil Judge (Senior Division), Saharanpur.

5. As per plaint dated 03.03.1972, suit property detailed at the bottom of plaint is described as under :

“One Daribast Arazi Tal untilled in the east direction, and in the west direction, towards the north side, a balcony of Shakasti is built in the remaining part of the property, and some other constructions are also there. Remaining part of the land is untilled, and is situated in Mohalla Mala Gate, Saharanpur as defined below.

East: Public Drainage and public road. West: Haweligada. Boarding House South: Deewan of the Haweligada Boarding House North: Wall of the house Jagan Nath Panjabi, and in the middle joint in north-south direction. And wall of the related Mahal Khana, and shop in the ownership of Abrar Ahmad, and heirs of Late Abdul Hakeem.

North: Public drainage and road.”

6. The plaint case set up by plaintiff Tahir Husain is that Darogha Mohd. Ibraheem was first owner in possession of suit property. When Darogha Mohd. Ibraheem expired, he left behind two heirs i.e. two daughters viz. Mrs. Amtul and Mrs. Amna Khatoon. Thereafter, Mst. Amtul died without leaving any issue. She left her sister Mrs. Amna Khatoon as her heir, who became sole owner in possession of property mentioned in the plaint. Later on, Amna Khatoon also died. She left two sons viz. Shabbeer Ahmad and Reyaz Ahmad and daughter Niyamat Ilahi, as heirs, who became joint-owners in possession of property mentioned in the plaint. Subsequently, Shabbeer Ahmad S/o (Late) Amna Khatoon also died. He left plaintiff, Zahid Husain, Tauheed Hasan and Mohd. Mobeen, (his sons); Mrs. Tahira Begum, Raeesa Begum, Mansoor Fatima and Shahida and Nadira (his daughters); and widow Khushnuma Begum as heirs.

7. Plaintiff is joint-owner in possession of property as described in the plaint in accordance with Shariyat, along with his brothers, sisters, Mrs. Khushnuma Begum (step-mother) and Reyaz Ahmad and Mrs. Niyamat Ilahi. Suit property is located at a very prime locality near Makan Ram Leela, at Madarsa Mazahirul Uloom, at a crossing inside the city, Saharanpur. It was around twenty years ago that the rent used to be very nominal in city Saharanpur. Zinda Hasan S/o Abdul rented suit property at the rate of Rs.30/-. He started business of Taal Sokhta. Plaintiff is engaged in sale and purchase of trees. He owns no shop. He felt dire need of a shop for the purpose of keeping wood-log. Hence, in 1971, he asked Zinda Hasan to vacate suit property. However, he plotted a conspiracy in col