Kumar, J.
1. The appeal is by the plaintiffs against the judgment and decree of the Trial Court, which has dismissed the suit for enforcement of pre-emptive right under Mahomedan Law.
2. For the purpose of convenience, the parties are referenced to as they are referred to in the original suit.
3. The subject matter of the suit is property bearing CTS Nos. 700 and 701 situated at War No.II of Bijapur City, located towards South by property bearing CTS Nos.702 and 704, Ward No.II of Bijapur city. Plaintiffs-1 to 3 are owners of CTS No.702, Ward No.II of Bijapur City. They are in peaceful possession and enjoyment of their respective properties.
4. Defendants-2 and 3 are the owners of the schedule property. Defendant No.1 purchased the schedule property from defendants-2 and 3 under a registered sale deed dated 19.12.1996. The case of the plaintiffs is that defendant No.1 is not the resident of Bijapur city and he is a permanent resident of Babalad village. The plaintiffs disclosed their intention to purchase the suit property when the defendant No.1 who being the distant relative of defendants came over on thee suit property for enquiries. At the time of enquiries also the plaintiffs altered the defendants that the plaintiffs have pre-emptive right over the property of the defendants. They sought for the first option to purchase the property. Plaintiffs directly and indirectly altered defendants No.2 and 3 in respect of intended transactions when defendant No.1 intended to purchase the suit property. Defendants-2 and 3 disclosed that without giving option to the plaintiffs, the defendants-2 and 3 will not go to transfer or alienate the suit property. The defendants also disclosed that they being the relative, they are going to verify the property and defendant No.1 has no interest of any manner to purchase the suit property. Believing the words of defendants and disclosing their intention, the plaintiffs kept mum and in the meantime all the defendants high-handedly without disclosing true facts, behind the back of the plaintiffs executed regular sale deed in favour of defendant No.1 on 19.12.1996. After knowing the fact of sale to the defendants on 24.12.1996. The plaintiffs applied for certified copy of sale deed and it was supplied on 27.12.1996. The plaintiffs are the adjacent owners to the suit property having their pre-emptive right over the suit property, which was sold by defendants No.2 and 3 in favour of defendant No.1.
5. The defendant-1 knowingly with dishonest intention to defraud the legal right of plaintiffs got executed registered sale deed from defendants-2 and 3 illegally. On coming to know of the sale, the plaintiffs approached the defendants for reselling the suit property in favour of the plaintiffs for whatever consideration paid by the first defendant in favour of defendants-2 and 3 i.e., Rs.1,00,000-00 as a pre-emptive right. For that the defendants-1 to 3 showed their negative attitude and further the defendants threatened the plaintiffs to do whatever they want. Thereafter the plaintiffs-1 to 3 filed their objections to the concerned authorities. After exhausting all the reasonable remedies available under law, they got issued legal notice by disclosing all the true facts. The plaintiffs got issued legal notices as per law and the same was served on the defendants. The defendants have not complied with the demand made therein. Therefore they have no other option except to file a suit for enforcing the pre-emptive right.
6. After service of summons the first defendant entered appearance and filed written statement. It is his case that he purchased the suit property from defendants-2 and 3 on 19.12.1996 under a registered sale deed, for due consideration. He has taken possession of the suit property on the date of sale deed and to the knowledge of the plaintiffs. He is a bonafide purchaser for valuable consideration and has purchased the suit property after reasonable enquiries. The plaintiffs did not raise any objections when the suit property was being purchased. Even after the first defendant went into possession of the suit property, no objection was raised. The present suit is filed only to harass the defendant. He denied the allegation that plaintiffs-1 to3 are the owners of CTS No.702 and plaintiffs-4 to 6 are the owners of CTS No.704 of Ward No.2 of Bijapur. He admits that defendants-2 and 3 are the owners of plaint schedule property. However, he denied the allegation that the first defendant is not the permanent resident of Bijapur and that he is permanent resident of Babalad Village are false. He has immovable properties at Babalad also. He is residing in the suit property after taking possession of the same on the date of sale deed. The allegation that plaintiffs disclosed their intention to purchase the suit property to the defendant when he came to see that the suit property was denied. The allegation that he alerted the first defendant with regard to the pre-emptive right is also denied. The allegation that plaintiffs sought for first option to purchase the suit property was denied. The allegation that defendants-2 and 3 promised that they would not alienate the property without giving first option to the plaintiffs are also denied. The allegation that the sale deed was executed behind the back of the plaintiffs was denied. Further he contends that the right of pre-emptive right is very much restricted according to the law laid down by the Supreme Court, the plaintiffs do not claim themselves to be co-owners nor do they claim to have any vicinage or any pre-emptive right over the suit properties. The plaintiffs have not mentioned as to how the pre-emptive right is acquired by the plaintiffs. The only statement that the plaintiffs have pre-emptive right is not sufficient to entertain the suit. Just being owner of the adjacent property does not give rise to pre-emptive right. The plaintiffs have no right at all to file suit. The defendants have a constitutional right to property and to deal with the same. they have all sorts of right under the law, including the right to dispose off the property to whomsoever they like to. The suit is not within time. There is no cause of action and therefore he sought for dismissal of the suit.
7. Defendants-2 and 3 did not filed any written statement. On the contrary, they file a memo adopting the written statement of the first defendant.
8. On the aforesaid pleading, the Trial court framed four issues, which are as under:
1. Whether the plaintiffs prove that they got pre-emptive right to purchase the suit property from defendants No.1 and 2?
2. Whether the plaintiffs prove that they are entitled for sale deed from defendants for consideration ofRs.1,00,000/- as contended by them in the plaint?
3. Whether the suit is barred by limitation?
4. What order or decree?
9. The plaintiffs in order to substantiate their claim examined P.Ws-1 to 3 and produced 22 documents which are marked as Exs.P-1 to P22. The first defendant was examined as D.W-1 and third defendant was examined as D.W-2. They have produced no documents.
10. In the suit, a Commissioner was appointed to make local investigation and to prepare a sketch showing the respective properties including the plaint schedule properties. The Commissioner S.P. Dixit, Advocate of the court executed the Commission warrant and filed his report along with the hand sketch.
11. The Trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiffs have failed to plead what is their right in the plaint. Order 6 Rule 2 of CPC prescribed that every pleading shall contain the concise form of material facts on which the party pleading relies for his claim. Proof without pleading is of no use. As there is no plea, the plaintiff for want of pleadings and on that ground alone the suit is liable to be dismissed. It also looked into the evidence of P.Ws-2 and 3 and came to the conclusion that formalities which are to be performed before the right to pre-emption would be enforced in a Court of law, has not been performed. The evidence of two witnesses does not establish the pre-emptive right and therefore, it came to the conclusion that plaintiffs have not made out a case as required by law. Accordingly, it dismissed the suit.
12. Aggrieved by the said judgment and decree of the Trial Court, the plaintiffs have preferred this appeal.
13. The Learned Counsel Sri Ambekar, appearing for the appellants assailing the impugned judgment and decree contended that after coming to know about the sale of the schedule property under the registered sale deed by defendants-2 and 3 in favour of the first defendant, the plaintiffs got issued legal notice to the defendants calling upon them to honour the right of pre-emption in favour of the plaintiffs. In the said notice they brought to their notice that even before the sale, the plaintiffs had expressed their desire to enforce the pre-emptive right and first option to purchase the property to be given to them, which the defendants had agreed. Thereafter the plaintiffs got issued second notice which was duly attested by P.Ws-2 and calling upon the defendants to execute the sale deed by receiving Rs.1 lakh consideration paid under the sale deed, which notice had been duly served on the defendants who replied to the same. The plaintiffs being adjacent owners of the plaint schedule property, having a right of way to in the common passage under the Mahomedan Law, is entitled to a right to purchase the schedule property. Therefore, the Trial Court without properly appreciating the law on the point, committed serious error in dismissing the suit. He also submitted that in the appeal, an application is filed under Order 6 Rule 17 for amendment of the plaint, which clearly sets out the plea of pre-emption, which the Trial Court held was missing in the plaint. Therefore, though the plaintiffs have adduced evidence in support of the case of pre-emption, as the pleadings lacks material particulars, it is sought to be now substituted by way of amendment. Therefore the application is to be allowed and liberty is to be given to the plaintiffs to establish their case and therefore, the judgment and decree of the Trial Court is to be set-aside.
14. Per contra, the Learned Counsel Sri. Shivashankar H Manur, appearing for the defendants submitted that in the first place, in the plaint, the plaintiffs have not pleaded what the pre-emptive right means. Even otherwise, they have not complied with the requirement of Mahomedan Law before they could enforce the right of pre-emption. Mere issue of legal notice which is duly attested by two witnesses would not satisfy the requirement of Mahomedan Law to execute a sale deed in the presence of two witnesses. The two witnesses are examined in the case as P.Ws-2 and 3. Even if the entire evidence is taken as correct, it doest not establish the fact of their witnessing any demand. Therefore, the Trial Court was justified in dismissing the suit of the plaintiffs.
15. In the light of the aforesaid facts and rival contentions, the point that arise for consideration in the appeal is as under:
âWhether the plaintiffs have established their pre-emptive right in accordance with Mahomedan Law and the Trial Court was not justified in dismissing the suit of the plaintiffs.â
16. Before we go into the evidence and the case of the parties, it is necessary to have a glimpse of right of pre-emption of a Muslim under Mahomedan Law.
17. In the principles of Mahomedan Law by Mulla, 19thedition, Chapter 13 deals with pre-emption. Section 226 which deals with pre-emption reads as under:
âPre-emption: The right of shufaa or pre-emption is a right which the owner of an immovable property possesses to acquire by purchase another immovable property which had been sold to another personâ
Section 231 deals with who may claim pre-emption. It reads as under:
âThe following three classes of persons and no others are entitled to claim pre-emption, namely:
(1) a co-sharer in the property(Shafi-i-sharik);
(2) a participator in immunities and appendages, such as a right of way or a right to discharge water(Shafi-i-khalit) and
(3) owners of adjoining immovable property (shafi-i-jar), but not their tenants nor persons in possession of such property without any lawful title. A Wakf or Mutawalli is not entitled to pre-empt, as the Wakf property does not vest in him.
The first class excludes the second, and the second excludes the third. But when there are two more pre-emptors belonging to the same class they are entitled to equal share of the property in respect of which the right is claimed.
Exception: The right of pre-emption on the third ground, viz., that of vicinage does not extend to estates of large magnitude, such as villages and zamindaris, but is confined to houses, gardens and small parcels of land. The right however, may be claimed by a co-sharerâ
Section 232 deals with the question when the right of pre-emption arises. It reads as under:
âSale alone gives rise to pre-emption,- The right of pre-emption arises out of a valid complete and bona-fide sale. It does not arise out of gift (hiba), sadagah, wakf inheritance, bequest or a lease even though in perpetuity. Not does it arise out of a mortgage even though it may be by way of conditional sale; but the right will accrue, if the mortgage is foreclosed. An exchange of properties between two person subject to an option to either of them to cancel the exchange and take back his property at any time during his life, stands, on the same footing as a conditional sale; such an exchange does, not extinguish the ownership in the property and does not give rise to the right of pre-emption. But if one of the parties dies without cancelling the exchange, the transaction will mature into two sales and will give rise to the right of pre-emption.â
Section 233 makes it clear that ground of pre-emption must continue until the decree is passed. It reads as under:
âGround of pre-emption must continue until the decree is passed. The right in which pre-emption is claimed â whether it be co-ownership or participation in appendages, or vicinage must exist not only at the time of sale, but at the date of the suit for pre-emption and it must continue up to the time the decree is passed. But it is not necessary that the right should be subsisting at the date of the execution of the decree or at the date of the decree of the Appellant Court. The reason is that the crucial date in these cases in the date of the decree of the Court of first instance. The pre-emptor must hold the land until the pre-emption matter is finally decided by the ultimate Courtâ
Section 236 prescribes the condition to be fulfilled before a right of pre-emption is enforced. It reads as under:
âDemands for pre-emption â No person is entitled to the right of pre-emption unless-
(1) he has declared his intention to assert the right immediately on receiving information of the sale. This formality is called talab-i-mowasibat (literally, demand of jumping, that is, immediate demand); and unless.
(2) he has with the least practicable delay affirmed the intention, referring expressly to the fact that the talab-i-mowasibat had already been made, and has made of a formal demand.
(a) either in the presence of the buyer or the seller or on the premises which are the subject of sale and
(b) in the presence at least of two witnesses. The formality is called talab-i-ishhad (demand with invocation of witnesses).â
Explanation I reads as under:
âThe talab-i-mowasibat should be made after the sale is completed. It is of no effect if it is made before the completion of the sale.â
Explanation 5 states thus:
âNo particular formula is necessary either for the performance of talab-i-mowasibat or talab-i-ishhad so long as the claim is unequivocally asserted.â
Section 238 reads thus:
âTender of price not essential.- It is not necessary to the validity of a claim of pre-emption that the pre-emptor should tender the price at the time of the talab-i-ishhad; it is sufficient that he should then declare his readiness and willingness to pay the price stated in the deed of sale, or, if he has reasonable grounds to believe that the price named in the sale deed is fictitious, such sum as the Court determines to have been actually paid by the buyer.â
Section 245 deals with suit for pre-emption and what the claim must include, which reads as under:
âWhere the property is sold to a single buyer, a person claiming to pre-empt must pre-empt the whole interest comprised in the transfer to the buyer. A suit which does not ask for pre-emption of the whole of such interest is defective, and should not be entertained.â
Section 247 deals with legal device for evading pre-emption. It reads runs:
âLegal device of evading pre-emption â When is apprehended that a claim for pre-emption may be advanced by a neighbour, the vendor may sell the whole of his property excluding apportion, however small, immediately bordering on the neighbours property, and thus defeat the neighbours right of pre-emption.â
18. The Supreme Court of India had an occasion to deal with the right of pre-emption among Muslims in the case of SMT. MATTOO DEVI vs. DAMODARLAL (D) (Appeal (Civil) 5816/1994, decided on 18th July, 2001), it is held under:
âThe principle of talab in Mohammadan Law has three specific facets: the first being talab-e-muwthaba; Talab in common parlance means and implies a demand and talab-e-muwthaba literally means the demand of jumping. The idea is of a person jumping from his seat, as though started by news of the sale. In Talab-e-muwathaba the pre-emptor must assert his claim immediately on hearing of sale though not before and law stands well settled that any unreasonable delay will be construed as an election not to pre-empt. The second, being popularly known as the Second Demand, is Talab-e-ishhad, which literally speaking mean and imply the demand which stands witnessed. The Second demand thus must be in reference to the first demand and it is so done in the presence of two witnesses and also in the presence of either the vendor (if he is in possession) or the purchaser and the Third Demand though not strictly a demand but comes within the purview of the Principal and means initiation of legal action. It is however not always necessary since it is available only when one enforces his right by initiation of a civil suit such an action is called Talab-e tamlk or Talab-e o Talab-e Khusmat. In this form of Talab the suit must be brought within one year of the purchaser taking possession of the property and a suit of claim for pre-emption must relate to whole of the interest and not part of the estate.
Needless to record that right of pre-emption (shufa) is the right which the owner of immovable property possesses to acquire by purchase of any immovable property which had been sold to another person.â
19. The High Court of Bombay and High Court of Calcutta have held that the right of pre-emption is a right of re-purchase from the buyer and a mere personal right. The Allahabad High Court held that it is an incidence of property.
20. However the Supreme Court in the case of SHRI AUDH BEHARI SINGH vs GAJADHAR JAIPURIA and ORS ((1955 (1) SCR 70), has held that:
âThe right of pre-emption is an incidence of property and attaches to the land itself.â
Therefore, it held that:
âThe right of pre-emption under Muhammadan Law is a personal right on the part of the pre-emptor to get a re-transfer of the property from the vendee who has already become owner of the same. The right becomes enforceable only when there is a sale but the right exists antecedently to the sale; the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land. The sale is a condition precedent not to the existence of the right but to its enforceability. The correct legal position seems to be that the law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owners unfettered right of sale and compels him to sell the property to his co-sharer or neighbour as the case maybe. The persons who is a co-sharer in the land or own lands in the vicinity consequently gets an advantage or benefit corresponding to the burden with which the owner or the property is saddled; even though it does not amount to an actual interest in the property sold. The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an interest in the land itself.â
21. The Apex Court in the case of RADHAKISAN LAXMINARAYAN TOSHNIWAL vs. SHRIDHAR RAMACHANDRA ALSHI and ORS (AIR 1960 SC 1368), was held that it is now well settled the right of pre-emption is a weak right and is not looked upon with favour by Courts and therefore, the Courts cannot go out of their way to help the pre-emptor.
22. It is background of this legal position, we have to appreciate the evidence on record in this case to find out whether the plaintiffs have made out a case of pre-emption. As rightly pointed out by the Trial Court, in the entire plaint, the only plea regarding pre-emption is that the plaintiffs are adjacent owners to the schedule properties having their pre-emptive right over the schedule property which was sold by defendants-2 and 3 in favour of defendant-1.
23. As is clear from Section 231 referred to above under the Mahomedan Law, three classes of persons and no others are entitled to claim pre-emption, i.e., co-sharer in the property or the participator in immunities and appendages such as right of way or a right to discharge water or owners of adjoining immovable property. The right of pre-emption on the aforesaid third ground, i.e., vicinage does not extend to estates of large magnitude, such as villages and zamindaris, but is confined to houses, gardens and small parcels of land. However, the Apex Court in the case of BHAU RAM vs BAIJ NATH SINGH and ORS. (AIR 1962 SC 1476), and in SANTRAM and ORS vs. LABH SINGH and ORS. (1964 (7) SCR 756), has held that law of pre-emption based on vicinage is void.
24. Therefore, now only two grounds remain. Therefore, in that context it was necessary for the plaintiffs to have pleaded specifically what is the nature of pre-emptive right which they have and they are enforcing in the suit. That apart, Section 236 as set out above, prescribes what are the conditions precedent which are to be satisfied before the claim for pre-emption would be up held by the Courts. The conditions are: firstly, the person claiming pre-emption right has to declare his intention to assert the right immediately on receiving the information of the same. That is formally called talab-i-mowasibat. Secondly, with the least practicable delay affirmed intention and making formal demand either in the presence of buyer or seller or on the premises which are the subject of sale, in the presence of atleast two witnesses. The second formality is called as talab-i-ishhad (demand for invocation of witness). It is only thereafter he can resort to third step of filing a suit for enforcement of pre-emptive right, if the earlier two demands are not complied with.
25. In GANGAPRASAD vs. AJUDHIA ((1905) 28 ALL 24), the High Court of Allahabad held that, to constitute a valid talab-i-ishhad it was necessary that the witnesses should have been specifically called upon to bear witness to the demand being made. This was dissented from in two later Allahabad cases, which held that the omission of this invocation addressed to the witnesses was not necessarily fatal. But the Calcutta High Court approved the GANGAPRASADS case and considers that the witnesses must be asked to witness the demand by some such words as âby ye witnesses to this. This reason of the judgment is that the enforcement of the right of pre-emotion must be proceeded by an observance of the preliminary forms prescribed by Mahomedan Law. Patna High Court has recently held that invocation of witnesses to bear testimony to the demand is an essential element of Talab-i-Ishhad. The Bombay high Court in a recent judgment was held that it is sufficient if the pre-emptor informs the witnesses of his right to pre-empt and the witnesses are taken to the purchaser for the purpose of attesting the Talab. It is also that talab-i-ishhad may be combined with the talab-i-mowasibat. Thus, if at the time of talab-i-mowasibat the pre-emptor has an opportunity of invoking witnesses in the presence of the seller or the buyer or on the premises to attest the talab-i-mowasibat and witnesses are in fact invoked to attest it, it will suffice both the talabs (demands).
26. Therefore it is clear that when a Muslim wants to enforce the pre-emptive right that is conferred on him by the custom, the requirement prescribed under the custom is to be strictly followed. The essence of this pre-emptive right is firstly he must express his intention to purchase the property immediately on receiving the information of the sale. Then he has to follow such communication by making a demand to the purchaser or seller in the presence of two witnesses. It is only if such a demand is not complied with, a cause of action arises for him to file a suit within a period of one year from the date of sale enforce the right of pre-emption. This is the requirement prescribed in the custom. Therefore when the customary right is sought to be enforced in a Court of law, all the prescriptions of the custom have to be meticulously followed.
27. In the instant case, neither in the pleadings nor in the evidence of the plaintiffs it is stated that they made a demand to the defendants in the presence of two witnesses. On the contrary, their specific case is that after making known their intention, when the defendants did not come forward to execute the sale deed, they issued legal notice containing the demand to execute the sale deed and for that sale deed they have taken the signature of two witnesses who are examined in the case as P.Ws-2 and 3. This according to then satisfies the requirement of making a demand in presence of two witnesses and therefore the plaintiffs were entitled to a relief enforcement of their pre-emptive right of specific performance. As set out above, unless a demand is made to the purchaser or the seller in the presence of two witnesses, the second mandatory requirement prescribed under the custom is not fulfilled and issue of legal notice after getting two witnesses attesting their signature to the same cannot be construed a substitute for such requirement in custom. In fact, the two witnesses who are examined in this case have categorically stated that they have not seen the first defendant. In their cross-examination they have categorically stated that they requested the seller not to sell the property. But after sale, they have not played any role at all except attesting the legal notice, which as stated earlier does not satisfy the customary requirement. Though in the examination-in-chief, it is stated that it is in their presence the plaintiffs requested the defendants to execute the sale deed by accepting Rs.1 lakh as consideration, a perusal of examination-in-chief of both P.Ws-2 and 3 shows that it is identical prepared by the counsel and in the cross-examination, both of them have categorically stated that they are not acquainted with the first defendant at all. In fact, the plaintiffs in their evidence have stated that they ever made any demand in the presence of those two witnesses demanding execution of the sale deed. Therefore, the Trial Court on careful consideration of the aforesaid oral evidence on record has rightly held that this requirement of custom is not fulfilled which is a condition precedent for enforcing of pre-emptive right and in the absence of such condition not being complied with, the plaintiffs are not entitled to the relief of enforcement of specific performance of the pre-emptive right set up by them.
28. In the light of the aforesaid discussion, I am satisfied that the plaintiffs have not fulfilled the requirement of the custom which is a condition precedent for enforcing the pre-emptive right and therefore they are not entitled to a decree. In that view of the matter, the order assed by the Trial Court dismissing the sit of the plaintiffs is valid and cannot be found fault with. Moreover, the only type of pre-emptive right claimed by them in the plaint has been declared as void and unconstitutional by the Apex Court as stated in para 28 supra. The application for amendment of the plaint is also rejected, as since the notice itself is not in accordance with law, the amendment will not serve any useful purpose. Therefore I pass the following order:
Appeal is dismissed.
No costs.