Holding

The plaintiff, as a co‑sharer, enjoys a continuing customary right of pre‑emption over the property despite its location within municipal limits, and the right was not terminated by the 1957 land reforms act.

Summary

Fazlerab, a co‑sharer of a village property that had become part of the municipal limits of Tanda, sued Mohd. Yakeen claiming a customary right of pre‑emption under the Oudh Lands Act, 1876. The trial court upheld the right, but the High Court reversed, holding that the custom did not apply in towns and that Fazlerab failed to prove its existence at the time of the 1951 sale. On appeal, the Supreme Court examined whether the custom of pre‑emption could be presumed in a town, who bore the burden of proving its continuance, and whether the 1957 U.P. Urban Areas Zamindari Abolition and Land Reforms Act extinguished the right. The Court held that the custom, though not presumed in towns, was proven to be a long‑standing practice and that the burden shifted to the respondent to show its abandonment, which it failed to do. It also affirmed that Fazlerab was a co‑sharer and that the 1957 Act did not abrogate the customary right. Consequently, the appeal was allowed and the lower judgments restoring Fazlerab's right were reinstated.

Issues considered

Whether the customary right of pre‑emption under the Oudh Lands Act, 1876, applies to land within municipal limits.
Whether the plaintiff discharged the burden of proving that the custom was continuing at the date of transfer.
Whether the U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1957, extinguished the customary right of pre‑emption.
Whether the plaintiff is a co‑sharer of the suit property.

Subjects

customary right of pre-emptionco‑sharermunicipal limitsU.P. Urban Areas Zamindari Abolition and Land Reforms ActOudh Lands Actburden of proofproperty law

Judgment

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.
D
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
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. Urbnn 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)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 661 of 1997
F
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.
G
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
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:
...
The suit property originally belonged to one Sakhawat Ali. The property
is situated in the village Sakrawal. A part of the village wcs included within
the municipal limit of the to.wn of Tanda. Sakhawat Ali transferred the suit
property to his wife in lieu of dower debt and the same was sold in the yeer B
1951 to one Mohd. Makin, predecessor of the defendant-respondent who was
a stranger to the village. The plaintiff-appellant being a co-sharer tiled the
present suit claiming right of pre-emption. The suit was contested on the
grounds inter alia that only the house was sold 1111d not the land over which
plaintiff could have exercised his right of pre-emption and that right of pre- C
emption ceased to be available once the suit property fell within the limit of
municipality of Tanda. The trial court decreed the suit holding thct the
transfer in question was not confined to the house alone but extended also
to the house-site. Relying on four judgments of the courts of the munsif and
the subordinate judge for the years 1915, 1924 to 1926, the trial court also held
that such a right of pre-emption existed even after the suit property was D
included within the municipal limit of Tanda. Before the first appellate court
a dispute was raised as to whether the suit property WltS situated within the
town ofTanda. The court on the basis of the report of the Commissioner gave
a finding that on the date of transfer of the suit property the part of the village
on which the suit property was situated ceased to be an agricultural village E
and it became a part of urban agglomeration by being included within the
municipal limits of the said town and this finding has become final. The fast
appellate court dismissed the appeal. The High Court allowed the second
appeal tiled by the defendants by the impugned judgment holding inter alia
• that the custom relating to pre-emption was not available in the town of Tenda
and that the plaintiff could not prove the right of pre-emption of a co-sharer F
in respect of suit property.

Admittedly, Oudh Lands Act 1876 is applicable to the suit land The
Chapter II deals with right of pre-emption. We may extract below clause (b)
of Section 7 and Section 8 of the said Act, which are relevant for the present
purpose: (}

7. Presumption as to its existence. - Unless the existence of any
custom or contract to the contrary is proved, such right shall, whether
recorded in the settlement-record or not, be presumed-
(a)......... H
836 SUPREME COURT REPORTS (2002) l S.C.R.
. .
(b) to extend to the village-site, to the houses built upon it, to all
A
lands and shares of lands within the village-boundary, and to all
transferable rights affecting such lands.
8. Its existence in towns to be proved The right of pre-emption shall
not be presumed to exist in any town or city, or any sub-division
B thereof, but may be shown to exist therein and to be exercisable
therein by such persons and under such circumstances as the local
custom prescribes."

Section 7(a) speaks of a village-site and house built upon it and according
to the said section existence of customary right of pre-emption can be presumed
C whether recorded in a settlement record or not. But under Section 8 right of
pre-emption shall not be presumed to exist in any city or town and the person
claiming such right of pre-emption in such area has to show and prove
existence of such customs and such circumstances as the local customs
prescribes.
D The customary right of pre-emption has not been looked upon favourably
as it operates as a clog on the right of the owner to alienate the property but •
in view of Sections 7 and 8 of Oudh Laws Act, 1876, legislative recognition
has been giv~n to customary right of pre-emption in the area where suit land
is situated, the only difference is that in respect of customary right of pre-
E emption over a village site and house built upon it, presumption will arise but
in case of its existence in towns it has to be approved

Now the question is whether the plaintiff has been able to discharge his
burden of proof to t!-e customary right of pre-emption over the suit land.
Before the trial court judgments for the years 1915 and 1924-26 have been
F proved. The courts in these judgments have recognised such a customary
right of pre-emption of a co-sharer in respect of town land. It is well settled
that judicial decisions recognizing custom are relevant and admissible
notwithstanding that they are not 'inter parties'; and such evidence in the
most satisfactory evidence. Learned senior counsel for the defendant has
G contended that the plaintiff did not produce any evidence to show that this
custom was continuing on the date the sale deed was executed in 1951.
Having proved that the above custom was continuing in respect of town land
also and recogniz.ed by courts, it was the burden of the defendant to show
that this custom was either abandoned or discontinued.

H The High Court relying on the decision of Abdul Alim and Ors. v. Hayat
FAZLE RAB v. MOHD. YAKEEN [PHUKAN, J.] 837
Mohammad and Ors., AIR 33 (1946) Oudh 188 held that the customary right A
of pre-emption ceased to exist in the town. Mr. P.S. Mishra, learned senior
counsel for the plaintiff has submitted that the High Court misapplied this
decision to the facts of the case. On the other hand Mr. Dinesh Dwivedi,
learned senior couns~l for the defendants has strenuously urged that tile
above decision squarely applied to the facts of the present case and the B
plaintiff could not prove that the custom was continuing one.

That was a decision in respect of the customs of escheat. The High
Court observed it as follows:

"It could still offer a very strong reason for non-application of custom C
of pre-emption as well to townships on account of complete
transformation in the social system prevalent in cities as compared to
the one prevalent in villages which must equally hold good for the
custom of pre-emption."

In our opinion, the High Court erred in applying the above ratio to the D
case in hand only on the ground that there was a complete transformation
in the social system prevailing in the cities. In view of the fact that courts
recognized such customary right of pre-emption in respect of town land, the
above reasoning of the High Court is not acceptable to us. The High Court
has also recorded that there was no evidence that the custom was a continuing
one. This finding is also erroneous inasmuch as the High Court overlooked E
the fact that this custom was not only prevalent in the town for a long period
but there was no evidence from the side of the defendant that this custom
was discontinued at any point of time. We, therefore, find considerable force
in the submission of Mr. Mishra.
•
Mr. Dwivedi has further contended that plaintiff was not a co-sharer of F
the Mohal and the suit was liable to be dismissed on this ground. The
contention of the learned senior counsel has to be rejected as on the facts,
courts below have found that the plaintiff was a co-sharer. Relying on some
provisions of the U.P. Urban Areas Zamindari Abolition and Land Reforms
Act, 1957, Mr. Dwivedi has also contended that after enactment of the above G
Act the concept of pre-emption ceased to exist. This point is never urged
either before the High Court or before the subordinate courts and, therefore,
we need not examine this point. Moreover, we have perused sections of the
Act to which our attention has been drawn by the learned senior counsel and
we are unable to accept that after coming into force of the above Act, the
customary right of pre-emption ceased to exist in the area in question. H
838 SUPREME COURT REPORTS [2002] I S.C.R.

A Accordingly, we hold that the plaintiff being a co-sharer has acquired
right of pre-emption over the suit property and, therefore, is entitled for a
decree. We, therefore, set aside the impugned judgment of the High Court and
restore the judgments of the two courts below. Cost on the parties.

B.S. Appeal allowed.
B

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