FAZLE RAB versus MOHD. YAKEEN

FAZLE RAB versus MOHD. YAKEEN

The burden was on the respondent to show that the customary right of pre-emption was discontinued, which was not done. Courts have recognized the existence of such custom in town land, and there is no evidence that the custom ceased. The appellant is a co-sharer and thus entitled to pre-emption. The High Court's findings to the contrary were erroneous.

Parties
Appellant: Fazlerab; Respondent: Mohd. Yakeen
Jurisdiction
India
Judgment Date
05 February 2002
Procedural Posture
Civil Appeal / Appeal From Allahabad High Court Judgment Dated 9.10.96 in S.a. No. 1057 of 1977
Outcome
appeal allowed
Legal Topics
Pre Emption, Co Sharer Rights
Property Law Customary Law Pre Emption Co Sharer Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Fazlerab

Appellant

Mohd. Yakeen

Respondent

Procedural Posture

Civil Appeal / Appeal From Allahabad High Court Judgment Dated 9.10.96 in S.a. No. 1057 of 1977

Legal Issues

  1. 1 Whether the right of pre-emption existed in respect of property situated within municipal limits at the time of transfer.
  2. 2 Whether the appellant was a co-sharer entitled to the right of pre-emption.
  3. 3 Whether the right of pre-emption ceased to exist after the U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1957.

Ratio Decidendi

The burden was on the respondent to show that the customary right of pre-emption was discontinued, which was not done. Courts have recognized the existence of such custom in town land, and there is no evidence that the custom ceased. The appellant is a co-sharer and thus entitled to pre-emption. The High Court's findings to the contrary were erroneous.

Court Disposition

appeal allowed

Orders

  • Impugned judgment of Allahabad High Court set aside.
  • Judgment and decree of courts below restored.