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1925 Supreme(Oudh) 134
HIGH COURT OF OUDH
Raza, J.
Masih Uddin Ahmad - Appellant
Versus
Munir Ahmad - Respondent
Decided On : 07-11-1925
JUDGMENT
Raza, J - This is a plaintiff's appeal arising out of a pre-emption case. The property sold was art under-proprietary plot in a village of which the plaintiff is the superior proprietor. The vendee holds under-proprietary rights in the village.
2. The plaintiff brought the suit, alleging that he had a preferential right to pre-empt the property. The suit was contested by the vendee (Defendant No. 2).
3. The learned Munsif rejected the claim, holding that the vendee had preference as against the plaintiff. His decision was upheld by the Court of first appeal.
4. The plaintiff has appealed to this Court, challenging the finding on the point decided against him.
5. I think this appeal should be allowed. Both the lower Courts were of opinion that the ruling in Muhammad Abdul Aziz v. Bhagwan Das, A.I.R.1922 Oudh.101 applied to this case. I am not prepared to agree with them on that point. In my opinion the ruling in the Hon'ble Raja Ali Mohammad Khan v. Ram Bilas, [1906] 9 O.C.271 is fully applicable to this case. The plaintiff and the vendee are equally entitled to pre-empt the property. The question as to who is entitled to the property [should be decided by drawing lots.
6. Hence I allow the appeal, and setting aside the decree of the Courts below, remand the case to the first Court under Order 41, Rule 23, Schedule 1, of the Civil P.C., with directions to re-admit the suit under its original number in the register and proceed to determine the suit according8:03 PM 4/9/2009 to law.
7. Costs will abide the result.
8. Apeal allowed and case remanded.
