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GAUTAM KUMAR CHOUDHARY
Md. Hanif – Appellant
Versus
Md. Taufiq Alam – Respondent
JUDGMENT
Gautam Kumar Choudhary, J.—The appellant is the plaintiff who has preferred the second appeal under Section 100 of the CPC against the judgment and decree of reversal passed by the Principal District Judge, Dumka in Title Appeal No.9/2012.
2. Plaintiff filed Suit in exercise of the peremptory right to purchase the suit property and for a decree directing the Defendant No.1 to execute sale deed of the schedule ‘B’ property in favour of the plaintiff and to give possession.
3. The case of the plaintiff in brief is that both the parties are Mohammedan by sect Sunni. The Plaintiff Md. Hanif and Defendant No.2 Bibi @ Buchun are full brother and sister. Defendant number 1 is a rank outsider having no relationship with the plaintiff and Defendant No.2. The plaintiff acquired the schedule A property by registered sale deed and is residing therein, and Defendant No.2 also acquired the suit property mentioned in schedule B, vide registered sale deed in the year 1983 towards the North of schedule A property in which she was residing. Rafique Alam purchased schedule C property towards south of schedule A property and thus Schedule A property is situated in the middle between schedule
Right to Pre-emption – Just being owner of adjacent property does not give rise to pre-emptive right based on vicinage.
The main legal point established in the judgment is the strict interpretation of the requirements for pre-emption under the Mahomedan Law, particularly the immediate demand of jumping as per Section ....
The court held that pre-emption based on vicinage is unconstitutional, and disputes regarding pre-emption rights necessitate a full trial due to the involvement of mixed questions of law and fact.
Point of law: condition restraining from alienating his share cannot be imposed and such a condition is void. However, as above pointed out, the preemption clause available to the plaintiff by virtue....
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