SHRI AUDI BEHAR SINGH versus GAJADHAR JAIPURIA AND OTHERS

Citation: [1955] 1 S.C.R. 70 · Decided: 23-04-1954 · Supreme Court of India · Bench: MEHR CHAND MAHAJAN · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

1954 
Chhote Khan 
v. 
Mal Khan-and 
Qthtrs.· · 
Ghul~m H6san J. 
1954 
April 03. 
70 '. 
[195$]:.' 
for .no issue., was .frarrie\I, . ; no~. any Jipding , _r~corqeq. by . 
the trial <;:ourt, ,This poil)t ;is .,not tal<:t:n .even ,in: t.he ,. 
grounds 9£, appeal 
toi~h\s C()ur\., .The plea hj\S .. no;s1Jh· 
stance and '\Vas right!Y reject~d by 
0the, High ... Cciurt .: on 
the ground . that, poss.ession. ,was • under,. an, arrangc;ment ... 
between the co-sharers and. no . question •of. adyer~e-
possession could ,ari~e µndq. the circum~tanc_es. 
· 
We· hold that there is no force .. in this appeal• and .. · 
dismiss it with costs. 
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Appeal dismissed.".,,. 
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SHRI.AUDI-i BEHAR! SINGH: 
v . . 
GAJADHAR JAIPURIA AND OTHERS:' " . 
[Mmm · CHAN'D 
M~HAJAN C.J., Bip.N. KuMAR , •• 
MuKHERJEA, VIVIAN BosE, N. H .. BHAGWATJ. and· 
T. L. VENKATARAMA AYYAR JJ.] 
. 
CustOf!1;-Pre-"emption-Ci'ty' 
of 
Pre-emptiOn~Suth ri"ght-lnciif.ent 
land. 
' · 
Banaras~Local 
of · 'prap<rty and 
. ' 
. 
Custom 
qf 
attailiin g · tO 
Held, that a local c~stom _of pre~mption' existS 
in 
thC city· Of 
Banaras 
and the 
right attaches at least to all house· ··prripertie.f ·· 
situated ~ithin it arid no such incident of. custom is. prove~- which 
would make 
the 
1'ight , a_vailab:le only · between . person~ .. who a~e 
either ~atives of Banaras or .are domicile_d . therein. 
. 
. . . , 
.. 
When a righ~ of pre-erription rests. upo_n cust9m it becom.~s .the 
lex loc_i or ~he .law of the place and affects all lands situated in th_at .. 
place irrespCctiVC of the 
religion of ii.ationality-· or domicile' .of the . 
owners of the lands· except ·where ·.such incidents are prov.ed tO· be a,· 
part of the custom itself. 
·.-
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• 
The right 'of ·pre'-cmption ·is an iricident of Pro.perty and~.atta-
ches t0:· the land itself. . ;.~ 
· · ... 
. 
4 
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4 
Byjnath -.:. Kapilmon (24 W.R. 95) and,, Parsashth 
Nath .;,, 
Dhanai (32 Cal. 988) disapproved.. 
• ., . .'. ,· 
C1VIL 
APi>Ei:LA.Til · Ju'iUso1CTioN ·: 
· Civil · Appeal 
No. 15of1951.'"' · 
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·~ 'J·i. i4, •. 
Appeal from .the Judg'tµe~t. a11d .Qecree,, · dated,,thc."_. 
29th Angus;, . 1944, of the High Court· of Judicature ,at . 
·1 
Allahabad (Mulla :ind Yorke JJ.) 
in .first , Appeal 
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·s:c.R. 
-· st1Pil:EME CdBRT· IREPORTS 
71 
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. 79of1941. 
- · 
Achhtu Ram, . (N. C. Sen and R. C. Prasad, with 
·hiin:) for the appellant. 
· 
· · 
. . C. K. Dap'htary,· Solicitor--General for India and s:· P. 
Sinha,, (!. 
C. Mukherji,. Shaukat Husain, 
and S. P. 
·varmq, with them) f~r r~spondent No. 1. 
1954. April 23. · The Judgment of the Court was 
delivered by 
· 
MuKHERJEA J.-,-The plaintiff, who is 
the appellant 
before us, commenced the suit, out of which this appeal 
.. arises, in the Court of. the Civil Judge at Banaras (being 
Original Suit No. 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 
Mohalla Baradeo in the city of Banaras and bearing 
Municipal No. D 37 /48. The premises in suit admitted-
ly belonged to defendants Nos. 2 to 5, who are residents 
.of Calcutta and they sold it by a conveyance executed 
on the 29th March, 1941, and registered on the 3rd of 
.April following, to defendant No. 1, also a resident of 
Calcutta, for 
the price of Rs. 7,000. The plaintiff 1s 
the owner of the two premises to wit, premises Nos. D 
37 /85 and D 37 /44, within the same Mohalla of the city 
of Banaras, which are in close proximity to the pro-
perty m dispute and adjoin it on the northern and 
eastern sides respectively. 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. 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 furthe~ sent a 
registered notice to defendant No. · 1 on the 21st· May, 
1941; asking the latter to transfer the property to the 
plaintiff on receipt of the pric

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