IMPORTANT POINT
Right to Pre-emption – Just being owner of adjacent property does not give rise to pre-emptive right based on vicinage.

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 B and C property.

It is further averred that Defendant No.1 had no land or house abutting the schedule C property. Defendant No.2 sold her property to Defendant No.1 secretly without giving any information to the plaintiff by registered sale deed No. 85 in the year 2008 in respect of the Schedule B property and came in possession of the same. Plaintiff had made repeated requests to Defendant No.2 to convey the Schedule B property and execute registered sale deed in his favour but she failed and collusively sold the same to Defendant No.1. The present suit has been filed asserting the peremptory right of the plaintiff to purchase the schedule B property.

4. The main plea of the defence raised in the written statement is that the three residential houses referred to in the plaint as Schedule A, B and C are distinctly separate houses with no common appendage, vicinage and no common participation in usage on actual possession and enjoyment by their absolute owners, hence none of these houses attract right to pre-emption with the statutory or customary. The Defendant No.2 proposed to sell the suit property, but the plaintiff never showed any interest or willingness to purchase the same. It was against this backdrop that the Defendant No.2 entered into an agreement with Defendant No.1 on 21.6.2008 by accepting an amount of Rs.20,000 as advance consideration amount for the purchase of the said property. This agreement was within the knowledge of the plaintiff and he never raised any objection to it. Now the suit property has been purchased by Defendant No.1 on payment of valid valuable consideration amount and he is in actual possession and enjoyment of the same which has been duly mutated in Mutation Case No.58/2008.

5. On the main issue whether plaintiff had right of pre-emption in respect of suit property or not the learned Trial court held that the plaintiff had sought the relief of peremptory right to repurchase the suit property described in Schedule B of the plaint and he was the owner of adjoining property schedule A. The plaintiff fulfilled the requirement of Article 231 of Mohammedan Law by Mulla for claiming pre-emption with regard to suit property.

6. The Court of first appeal set aside the judgment and decree passed by the learned Court below on the ground that plaintiff had not complied with the provision of Article 236 of the Mohammedan Law which requires that the right of pre-emption is to be exercised by declaring the intention to assert the right immediately on receiving information of the sale as per the formalities called talab-i-mowasibat.

7. The second appeal has been preferred mainly on the ground that lower appellate court has committed grave error in law misinterpreting the provisions of Articles 231, 232, 233 and 237 of the Mohamme