1. ' Through this revision application under section 115 of C.P.C. The applicant Abdul Rahim has impugned the order, dated 1-12-1994 passed by learned 1st Senior Judge, Shikarpur rejecting the plaint of the applicant's Suit No,209 of 1999, under Order 7, rule 11, C.P.C. And order dated 26-9-1999 passed by learned 2nd Additional District Judge, Shikarpur maintaining the order, dated 1-12-1994, by dismissing the Appeal No,18 of 1995 filed by applicant.
2. ' The relevant facts necessary for the disposal of the present revision application are that applicant/plaintiff filed suit against respondent for pre-emption of Sikni Katcha house in village Dakhan Taluka Garhi Yasin, sold to respondents Nos.1 to 3 (vendees) by respondents Nos.4 to 7 (vendors) on 23-8-1993 by registered sale-deed for a consideration of Rs,65,000. On receiving the information of sale on 17-9-1993, he immediately went with amount of sale to the respondent No,3 at his house and declared his intention to assert the right of preemption by exercising the Talb-e- Muwasibath on the grounds of Shafi-eJar and Shafi-e-Khalit, and with least practicable delay, he asserted the second demand i,e, Talb-e-Ishhad expressing to the fact of Talb-eMuwasibath in presence of two witnesses and in presence of respondents Nos.1 to 3. Thereafter, he filed the suit for pre-emption.
3. ' The respondents 1 to 3 (the vendees) filed application under Order 7, rule 11, C.P.C. For rejection of plaint on the grounds that (1) the suit is not maintainable, (2) pre-emption cannot be claimed when the seller is Hindu and (3) the suit is insufficiently stamped. The application was opposed by the applicant.
4. ' The learned 1st Senior Civil Judge, Shikarpur after hearing the parties counsel granted the application. The learned Judge was of the view that right of pre-emption cannot be claimed by a Muslim when vendors are Hindu or European though the vendees may be Muslims. The rejection order was appealed which came for disposal before IInd Additional District Judge, Shikarpur in Civil Appeal No,18 of 1995. The order was maintained on the same analogy. Both orders are impugned in the present revision application.
5. ' I have heard learned counsel for the applicant Mr. Abdul Qadir Abro and Mr. Ahmed Ali M. Shaikh, learned counsel for the respondents/vendees as well as Mr. Illahi Bux M. Kehar, senior counsel, as amicus curaie.
6. ' The moot point involved in the present application is "whether a Muslim can maintain the suit for pre-emption in respect of sale by Hindu vendor in favor of Muslim vendee".
7. ' Mr. Abdul Qadir Abro, learned counsel for the applicant has contended that irrespective of the religion of the vendor, Muslim can maintain a suit for pre-emption in respect of sale to the Muslim vendee. In support of his contentions he referred the case of Sundri Bai v. Ghulam Hussain (1982 CLC 2241) wherein learned Single Judge of this Court (Justice Saeeduzaman Siddiqui, as he then was) held that 'in order to enforce the claim of pre-emption, it is not necessary that both preemptor and purchaser should be Muslims. The right of pre-emption being in the nature of legal servitude running with the land it could be enforced against the property in whosoever hand it may be, by observing that the respondent a Muslim was entitled to enforce the claim of preemption against the Hindu vendee in respect of the sale by Muslim Vendor".
8. ' The above view was based on Full Bench decision of Allahabad High Court in Govind Dayal v.
9. Inayatullah (7 ILR (Allahabad) 775).
10. ' The counsel for respondents Mr. Ahmed Ali M, Sheikh as well as Mr. Illahi Bux M. Kehar, learned amicus curiae contended that the right of pre-emption cannot be claimed in respect of sale by Hindu vendor though it was purchased by Muslim venuee. It has been contended that Muhammadan Law of Pre-emption is being applied by the Courts to Muhammadan as a matter of justice, equity and good conscience. It was further contended that right of pre-emption can be claimed against sale by a vendor irrespective of his religious on the basis of territorial law such as under N.-W.F.P. Pre-emption Act, 1981 and Punjab Pre-emption Act, 1991, or on the basis of custom. It was contended that where no such enactments were in existence, the Muslim Law of Pre-emption is applied by the Court to Muslims only.
11. ' It may be pointed out that in Shri Audh Behari Singh v. Gajadhar Jaipuria and others (AIR 1954 Supreme Court 417), the Supreme Court of India recorded the origin, development and application of Pre-emption Law in India as follows:-- "The Law of Pre-emption was introduced in this country by the Muhammadans. There is no indication of any such conception in the Hindu Law and the subject has not been noticed or discussed either in the writings of the Smirite Writers or in those of later commentators.
12. ' During the period of the Mughal Emperors the Law of Preemption was administered as a rule of common law of the land in those parts of the country which came under the domination of the Muhammadan Rulers, and it was applied alike to Muhammadans and Zimmees (within which Chiristians and Hindus were included), no distinction being made in this respect between persons of different races and creeds. In course of time, the Hindus came to adopt pre-emption as a custom for reasons of convenience and custom is largely to be found in provinces like Bihar and Gujarat which had once been integral parts of the Muhammadan Empire.
13. ' Opinions differ as to whether the customs of pre-emption amongst village communities in Punjab and other parts of India was borrowed from the Muhammadans or arose, independently of the Muhammadan Law, having its origin in the doctrine of "Limited right" which has always been the characteristic feature of village communities.
14. ' Since the establishment of British Rule in India, the Muhammadan law ceased to be general law of the land and as pre-emption is one of the matters respecting which Muhammdan Law is expressly declared to be the rule of decision where the parties to a suit are Muhammdans. The Courts in British India administered the Muhammadan Law of Pre-emption as between Muhammadans entirely on grounds of justice, equity and good conscience. Here again there was no uniformity of view expressed by the different High Courts in India and the High Court of Madras definitely held that the Law of Pre-emption, by reason of its placing restrictions upon the liberty of transfer of property, could not be regarded to be in consonance with the principles of justice, equity and good conscience. Hence the right of pre-emption is not recognized in the Madras Presidency at all even amongst Muhammadans except on the footing of a custom.
15. ' Rights of pre-emption have, in some Provinces like Punjab, Agra and Oudh, been embodied in statutes passed by the Indian Legislature and where the law has been thus modified it undoubtedly becomes the territorial law of the place and is applicable to persons other than Muhammadans by reasons of their property being situated therein.
16. ' In other parts of India, its operation depends upon customs and when the law is customary the right is enforceable irrespective of the religious persuasion of the parties concerned, where the law is neither territorial nor customary, it is applicable only between Muhammadans as part of their personal law provided the judiciary of the place where the property is situated does not consider such law to be opposed to the principles of justice, equity and good conscience.
17. ' Apart from these a right of pre-emption can be created by contract and such contracts are usually found amongst sharers in a village."
18. ' Learned counsel further contended that the view expressed by Full Bench of Allahabad High Court in the case of Govind Dayal v. Inayatullah was approved, where the question for decision was whether a Muslim pre-emptor could enforce his right against a Hindu vendee from a Muslim vendor. The observation of Full Bench was that: "right of preemption was not one of the repurchase from the vendee. It was a right inherent in the property and hence could be followed in the hands of purchaser who he might be".
19. ' The right of pre-emption can be enforced on the basis of (1) Territorial Law, (2) Customs and (3)
20. By contract in respect of sale by Muslims as well as non-Muslim. In absence of territorial law, customs and contract, the Muhammadan Law of Pre-emption is being applied to Muslims only by the Court of Sub-continent. The question came for decision, whether right of pre-emption can be enforced against Hindu vendee in respect of sale by Muslim vendor, before Full Bench of Calcutta High Court and Allahabad High Court in Shaikh Qudratullah v. Mohni Mohan (4 BLR 134) and Govind Dayal v. Inayatullah (7 ILR (Allahabad) 775) respectively, conflicting view was expressed, Calcutta Full Bench gave the decision in negative, whereas, Full Bench of Allahabad High Court expressed contrary view.
21. ' The Full Bench of Clacutta High Court, held that a right of preemption is nothing more than a mere right of repurchase, not from the vendor but from the vendee who is treated, for all intents and purposes as the full legal owner of the property which is subject-matter of the right.
22. ' Basis for the contrary view of Full Bench of Allahabad High Court was that "right of pre-emption was not a right of repurchase from the vendee. It was a right inherent in the property and hence could be followed in the hands of the purchaser whoever he might be". It is in effect as if in a sale- deed the vendee's name was rubbed out and the preemptor's name was substituted in its place".
23. The cases of Shaikh Qudratullah and Govind Dayal were considered by Supreme Court of India in Audh Behari v. Inayatullah (supra) and the view taken by Full Bench of Allahabad High Court was approved.
24. ' Mr. Illahi Bux M. Kehar, learned amicus curaie contended that it is not the law of the vendee which would apply to pre-emption, because the right of pre-emption is not a personal right and being in the nature of a limitation on the power of the vendor, it is the vendor's law that would apply. He referred the case of Allah Bux v. Jano and others (PLD 1982 Karachi 317). It was also contended that when a Sunni Muslim cannot claim right of pre-emption against Shia vendor how he can claim pre-emptive right against Hindu vendor on the basis of Muslim Personal Law which is not applicable to Hindus.
25. ' In case of Sundhri Bai v. Ghulam Hussain (supra) referred by learned counsel for the applicant, the question involved was whether a Muslim can enforce his pre-emptor right in respect of sale by Muslim vendor to Hindu vendee, whereas, the question involved in the present applications is whether a Muslim can maintain a right of pre-emption in respect of sale by a Hindu vendor to Muslim vendee.
26. ' The right of pre-emption is inherent in the property. In the words of Mr. Justice Mahmood, an eminent jurist of his time, that the right of pre-emption under Muhammdan Law partakes strongly of the nature of an easement right, the "dominant tenement" and the "servient tenement" of the law of easement being analogous to "pre-emptional tenement".
27. ' The right of pre-emption is not a personal right, it being in the nature of a limitation on the power of the vendor, enforceable,on sale, which is a condition precedent not the existence of the right but to its enforceability.
28. ' It is not a right of repurchase either from the vendor or from the vendee but it is simply a right of substitution entitling the pre-emption by reason of alegal incident to which the sale itself was subject to stand in the shoes of the vendee in respect of all the rights and obligations ensuing from the sale.
29. ' The right of pre-emption can be enforced on sale by a vendor who is subject to Muslim Personal Law. Hindu vendor cannot be subject to Personal Law of Muslims.
30. ' In the present case the owner viz., vendor is Hindu, he cannot be subject to the Muslim Personal Law and the property owned by such Hindu cannot be said to be having inherent right of pre- emption. I am supported in my view from Full Bench decision of Allahabad High Court in Dwarka Das v. Hussain (1878) ILR (Allahabad) 564), wherein the question was whether a suit to enforce right of pre-emption founded upon Muhammadan Law was maintainable where the vendor was a Hindu. The opinion of Full Bench was that where the vendor is Hindu a suit to enforce a right of pre- emption founded upon Muhammadan Law is not maintainable.
31. ' In the light of discussions above, it cannot be said that the learned Courts below have failed to exercise the jurisdiction or have acted illegally or with material irregularity requiring correction by this Court in revisional jurisdiction. I am of the view that application has no merit which is dismissed; however, the parties are allowed to bear their own costs.