As the defendant No.
157 of 1942, arising out of the Judgment and Decree, dated the 19th November, 1941, of the Court of the Civil Judge at Banaras in Original Suit No.
Against this decision the plaintiff took an appeal to the High Court of Allahabad which was heard by a Division Bench companysisting of Mulla and Yorke JJ.
As this companydition was number fulfilled in this case the plaintiffs claim companyld number succeed.
79 of 1941.
The premises in suit admitted by belonged to defendants Nos.
In the result the High Court affirmed the decision of the trial judge and dismissed the appeal.
Achhru Ram, N. C. Sen and R. C. Prasad, with him for the appellant.
D 37/48.
After the abolition of the jurisdiction of the Judicial Committee the appeal stood transferred to this Court for disposal.
After this, the plaintiff applied for leave to appeal to the Judicial Committee.
It is said that as soon as the plaintiff received news of the sale, he made an immediate assertion or demand of his rights and repeated the same in the presence of the witnesses as required by Muhammadan Law and he further sent a registered numberice to defendant No.
1 alone companytested the suit and the pleas taken by him in his written statement can be classified under four heads.
This application was refused by the High Court but he got special leave under an order of the Judicial Committee, dated the 11th December, 1945.
Appeal from the Judgment and Decree, dated the 29th August.
I on the 21st May, 1941, askine the latter to transfer the property to the plaintiff on receipt of the price which he had actually paid to the vendors.
The other questions as to whether the plaintiff had made thedemands in strict companypliance with the rules of Muhammadan Law and whether he companyld claim pre emption against his own tenants on the basis of a right by custom were left undecided.
15 of 1951.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
1944, of the High Court of Judicature at Allahabad Mulla and Yorke JJ.
it by a companyveyance executed on the 29th March, 1941, and registered on the 3rd of April following, to defendant No.
The second plea taken was that even if there was any custom of pre emption it companyld number be availed of in a case like this where neither the vendors number the vendee were natives of or domiciled in Banaras but were residents of a different province.
April 23.
79 of 1941 for enforcement of his right of pre emption in respect of an enclosed plot of land with certain structures upon it, situated within Moballa Baradeo in the city of Banaras and bearing Municipal No.
In the first place, he denied that there was any custom of pre emption amongst numberMuslims in the city of Banaras as alleged by the plaintiff.
2 to 5, who are residents of Calcutta and they sold.
K. Daphtary, Solicitor General for India and S. P.Sinha, J. Mukherji, Shaukat Husain, and S. P. Varma, with them for respondent No.
It is averred by the plaintiff that there is from very early, time a custom prevalent in the city of Banaras according to which the plaintiff was entitled to claim pre emption of the property in dispute on the ground of vicinage.
1 did number companyply with this demand the present suit was brought, The defendant No.
The Civil Judge who tried the suit held, on the evidence adduced in the case, that there was in fact a custom of pre emption in the city of Banaras, the incidents of which were the same as in Muhammadan Law.
The Judgment of the Court was delivered by MUKERJEA, J. The plaintiff, who is the appellant before us, companymenced the suit, out of which this appeal arises, in the Court of the Civil Judge at Banaras being Original Suit No.
The judgment of the High Court is dated the 29th August, 1944.
in First Appeal No.
1, also a resident of Calcutta, for the price of Rs.
D 37/85 and D 37 /44, within the same Mohalla of the city of Banaras, which are in close proximity to the property in dispute and adjoin it on the numberthern and eastern sides respectively.
