FAZLE RAB versus MOHD. YAKEEN

Citation: [2002] 1 S.C.R. 833 · Decided: 05-02-2002 · Supreme Court of India · Bench: S.S.M. QUADRI · Disposal: Appeal(s) allowed

Judgment (excerpt)

FAZLERAB 
A 
v. 
MOHD. YAKEEN 
FEBRUARY 5, 2002 
[SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.] 
B 
Oudh Lands Act, 1876-Sections 7(b) & 8-U.P. Urban Areas 7.amindari 
Abolition and Land Reforms Act, 1957-Right of pre-emption-Property 
brought within the municipal limits of a town-Transfer of the property C 
through sale-Claim of the right being a co-sharer of the property-
Availability of-Held, the customary right of pre-emption existed for a long 
time and is available in view of recognition by the courts-On facts. the right 
existed with the co-sharer on the date of the transfer of the property-Right 
not ceased to exist after the latter enactment. 
One S transferred the suit property to his wife in lieu of dower debt. 
The property is situated in a village. A part of the village ~s included within 
municipal limits of a town. She sold the property in 1951 to one M, who is the 
predecessor of respondent. Appellant filed a suit before trial court clniming 
a right of pre-emption on the property being a co-sharer u11der the provisions 
D 
of the Oudhs Land Act, 1876. The trial court decreed the suit holding thet E 
the right of pre-emption existed with the appellant even after the prop:rty is 
included within the municipal limits. Appellate Court dismis!W the 11ppe11l of 
the respondent on the basis of a finding of Commissioner that the property 
was within the municipal limits on the date of the transfer of the property. 
High Court allowed the second appeal of the respondent holding that the F 
custom relating to pre-emption was not available in that town under the Act 
and· that the appellant could not prove the right on the date of transfer. Hence 
theappeaL 
The respondent contended that the appellant failed to produce evidence 
to show that the customary right of pre-emption existed on the date of transfer G 
of the property; that the appellant is not a co-sharer of the property and that 
after the enactment of the U.P. Urban Areas Zamindari Abolition and Land 
Reforms Act, 1957, the right of pre-emption ceased to exist. 
Allowing the appeal, the Court 
833 
H 
834 
SUPREME COURT REPORTS 
(2002] I S.C.R. 
A 
HELD: 1.1 It is the burden of the respondent to show that the customary 
right of pre-emption was either abandoned or discontinued and was not 
continuing on the date of the transfer of the suit property in view of the 
recognition of the customary right of pre-emption of n co-shorer in respect 
of town bind by the courts. Judicial decisions recognising custom ere rewnnt 
nod admissible notwithstanding thnt they are not inter parties nod such 
B evidence is the most satisfactory evidence. (836-F-G) 
1.2. The view of the High Court that there was compl:te transformation 
in the social system prevailing in cities is contrary to the recognition by the 
courts of such customary right in respect of town land. The finding of the 
C High Court thet there is 110 evidence that the custom was a continuing one is 
erroneous since this c11stom wzs prevalent in the town for n long period. 
Further there \'"JllS no evidence from the side of the respondent tbot thfs custom 
wlls discontinued at nny point of time. (837-D-E) 
Abdul Alim and Ors. v. Hayat Mohammad and Ors., AIR 33 (l!M6} Oudh 
D ten, disti11guis!led. 
1.3. The oppellnnt is n co-shorer in view of the findins by the lower 
eo:irts. Tbe contention of the respondent that the "8ht of pro-emptmn cellst!d 
to exm oft:r thll entctment of the U.P. U rbnn ArctS Zamir.lblri Abolition ond 
L':cd Reforms Act, 1957 wm not urged either lnfore th: Hf3!i Co:iirt or b:fore 
E ~= lower co:iirts. Further, on p:r11snl of the Act, it i:l mot ecceptr.b!e thot the 
ecro~ry risht of pre-emption cell!2d to exist in th: orco. H=:cc tf:ll epp:!!a11t, 
b:io3 n co-soorer, hes ecquired n right of pre-emption over the suit property. 
(837-G-H) 
F 
G 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 661 of 1997 
From the Judgment and Order dated 9.10.96 of the Allahabad High 
Court in S.A. No. 1057of1977. 
P.S. Mishra, Pramod Swarup, Praveen Swarup and Ms. Pareena Swarup 
for the Appellant. 
Dinesh Dwivedi, Dr. J.P. Singh, Kamlendra Mishra and Mohd. Tariq 
Iqbal for the Respondent. 
The Judgment of the Court was delivered by 
H 
PHUKAN, .J. This appeal arising out of judgment of the High Court of 
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FAZLE RAB v. MOHD. YAKEEN [PHUKAN, J.] 
835 
Judicature at Allahabad is by the plaintiff. The parties shall be referred to as A 
arrayed in the suit. The facts are as follows: 
T

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