Shaha Ajij Balaso ShaikhversusSudhirkumar Gurappa Jamage

                                                            12-SA.92.2026 (J).doc


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIRCUIT BENCH AT KOLHAPUR
                     CIVIL APPELLATE JURISDICTION
                     SECOND APPEAL NO. 92 OF 2026
                                      WITH
                INTERIM APPLICATION (ST) NO. 2999 OF 2026
                                          IN
                         SECOND APPEAL NO. 92 OF 2026

1.       Shri. Shaha-ajij Balaso Shaikh
         Age; 75 years. Occu. Advocate,
         R/o. Shivaji peth, Jath, Tal. Jath,
                                                    … Appellant
         Dist. Sangli.

                   Versus.

1.       Shri. Sudhirkumar Gurappa Jamage
         Age : 61 years Occu: Agriculturist,
         R/o.: Near S. T Stand, Jath, Tal.: Jath
         Dist.: Sangli

2.       Mrs. Rashida Mahamed Iqbal Shaikh
         Age : 76 years Occu: Household
         R/o.: 1507/1508, Lokhandwala
         Complex,
         Kandiwali (East), Mumbai.

3.       Mr. Mihar Babalal Soudagar
         (Since Deceased Through Legal heirs)

3(a)     Mr. Babalal Balaso Soudagar,
         Age – 94 yrs., Occ. Nil
         R/o. Bilur, Jath Tal. Jath Dist. Sangli.

3(b)     Mr. Abdulrauf Babalal Soudagar
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         Age – 67 yrs., Occ. Business
         R/o. Bilur, Jath Tal. Jath Dist. Sangli.

3(c)     Mr. Imtiyaj Babalal Soudagar
         Age – 64 yrs., Occ. Doctor
         R/o. Bilur, Jath Tal. Jath Dist. Sangli.


3(d)     Mr. Sajid Babalal Soudagar
         Age – 68 yrs., Occ. Advocate
         R/o. Bilur, Jath Tal. Jath Dist. Sangli.

3(e)     Mrs. Jiya Latif Patel
         Age – 61 yrs., Occ. Service
         R/o. Bilur, Jath Tal. Jath Dist. Sangli.


3(f)     Mr. Kanojbanu Jabardast Mulla
         Age – 69 yrs., Occ. Household
         R/o. C/o. Jabardast Bapusaheb Mulla
         Nadaf Galli, Jath Tal. Jath, Dist. Sangli.

3(g)     Mrs. Nilam Rafik Algur
         Age – 66 yrs., Occ. Household
         R/o. C/o. Rafik Hasansaheb Algur
         Makandar Galli, Jath Tal. Jath. Dist.
         Sangli.


3(h)     Nassim Dadapasha Patel
         Age – 71 yrs., Occ. Household
         R/o. Before Mangal Talkie,
         Darga road, Miraj Tal. Miraj, Dist. Sangli.



4.       Mrs. Safiyabegam Mahomadirfan
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         Janvekar
         (Since Deceased Through legal heirs)


4(a)     Mrs. Gazal Abdulvahid Aabadar
         Age – 67 yrs., Occ. Household

4(b)     Mr. Asif Mahamadirfan Janvekar
         Age – 64 yrs., Occ. Service


4(c)     Mr. Abu Talim
         Age – 60 yrs., Occ. Service

4(d)     Mrs. Sabiya Duman Bedarekar
         Age – 55 yrs., Occ. Household

4(e)     Mr. Mohamadhasan Mahamadirfan
         Janvekar
         Age – 51 yrs., Occ. Service


4(f)     Mohamadhusen Mahamadirfan Janvekar
         Age – 51 yrs., Occ. Service
         Nos. 4(a) to 4(f) R/o. F-6, A/S “B” Vihar,
         “A” Wing, Survase Mitranagar                 … Respondents
         Hotagi road, Solapur
                         __________________________


Mr. Prajakt Arjunwadkar a/w Dhananjay Utture, C. Sankpal and Ritesh
Raut, for the Appellant.
                          __________________________



                                   CORAM :      ASHWIN D. BHOBE, J.
                                    DATE :      20th August, 2026.


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ORAL JUDGEMENT :


1.      Heard Mr. Prajakt Arjunwadkar, learned Advocate for the

Appellant.



2.      By this Second Appeal filed under Section 100 of the Code of

Civil Procedure, 1908, the Appellant assails the Judgment and Decree

dated 12.01.2026 passed by the District Judge-3, Sangli (“Appellate

Court”) in Regular Civil Appeal No. 278 of 2017 (“impugned

Judgement”), which reversed the Judgment and Decree dated

07.09.2017 passed by the Civil Judge, Junior Division, Jath (“Trial

Court”), in Regular Civil Suit No. 44 of 2009.



3.      The Appellant is the Plaintiff, whereas the Respondents are the

Defendants in Regular Civil Suit No. 44 of 2009.



4.      In brief, the case of the Appellant, an advocate by profession, is

that the Appellant had ancestral properties bearing Survey Nos. 28 and

29 at Rampur, Taluka Jath, District Sangli. The suit property, i.e. Survey

No. 28/1, was owned by the Appellant’s three (3) sisters. The Appellant

owns Survey No. 29, strips 7, 6 and 5. The Appellant is an adjacent

owner of the suit property and a co-sharer. The Appellant’s three sisters

sold the suit property to the Respondent No. 1 by Sale Deed dated
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17.04.2008. The Appellant learnt on 17.04.2008 that Respondent No. 1

had purchased the suit property. He therefore approached Respondent

No. 1 and claimed a right of pre-emption under Mohammedan Law.

Appellant again made a demand on 18.04.2008 for his right of pre-

emption, which Respondent No. 1 refused. Thereafter, Appellant issued

a notice dated 24.10.2008 to the Respondent No.1 (Sudhirkumar

Gurappa Jamage), offering Rs.1,00,000/- for the property, but received

no reply. Consequently, on 05.01.2009, Appellant filed Regular Civil

Suit No. 44 of 2009 before the Trial Court, seeking to enforce his right

of pre-emption.



5.      The Trial Court, by Judgment and Decree dated 07.09.2017,

decreed Regular Civil Suit No. 44 of 2009 in favour of the Appellant.



6.      Being aggrieved and dissatisfied with the Judgment and Decree

dated 07.09.2017, Respondent No. 1 filed Regular Civil Appeal No. 278

of 2017 before the Appellate Court.



7.      By the impugned Judgment, the Regular Civil Appeal No. 278 of

2017 was allowed, the Judgment and Decree dated 07.09.2017, passed

in Regular Civil Suit No. 44 of 2009 was quashed and the suit was

dismissed, leading to the present Second Appeal.


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8.      Mr. Prajakt Arjunwadkar, learned Advocate for the Appellant, by

referring to Section 231 of the Mohammedan Law, submits that the

Appellant falls within the category of 231(3) of the Mohammedan Law.

He submits that the Appellant has made the demand to exercise his

right as required under Section 236 of the Mohammedan Law. He

submits that the first demand for pre-emption was made on 17.04.2008,

whereas the second demand for pre-emption was made on 18.04.2008,

accordingly, there was compliance with both demands. He submits that

the Trial Court, after considering the material on record, which includes

oral as well as documentary evidence, came to a categorical finding that

the Appellant had complied with the requirements of both demands

under Section 236 of the Mohammedan Law and therefore decreed the

Suit. He submits that the Appellate Court has incorrectly appreciated

the evidence, resulting in the passing of the impugned Judgment. To

clarify, he submits that the Appellate Court has given unnecessary stress

to the legal notice at Exhibit – 66 issued by the Appellant to the

Respondent No.1. He submits that there is no requirement in law to

issue a legal notice, accordingly, even in the absence of notice, the two

requirements of Section 236 of the Mohammedan Law would be

established. He submits that the evidence of the witnesses examined by

the Appellant indicates compliance with the two demands, i.e., on

17.04.2008 and 18.04.2008, therefore, there was no occasion for the
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Appellate Court to reverse the Decree. He submits that the findings of

the Appellate Court on the issue of co-sharer - co-owner are illegal. He

has proposed the following two substantial questions of law at ground

Nos. (d) and (e), which are reproduced verbatim:-



           “(d) Whether the Id. Judge of Appellate Court erred in
           holding that, the Plaintiff failed to prove first and second
           Talab/demand merely on the ground that the notice dt.
           24.10.2008 did not specifically refer to the said demands,
           despite the fact that the Plaintiff and his witnesses have
           categorically deposed on oath regarding the performance of
           both Talabs/demands thereby adopting a hyper technical
           approach by ld. Appellate Judge and completely disregarding
           the substantive oral evidence on record;


           (e)     Whether the ld. Judge of Appellate Court seriously erred
           in not appreciating that, the appellant is claiming is right of pre-
           emption as an owner of adjoining immovable property which is
           specifically covered under Sub-Section (3) Section 231 of
           Mulla's Mohammedan Law and plea of co-sharer was merely an
           addition or alternative plea;”


9.      Perused the records with the assistance of Mr. Prajakt

Arjunwadkar, learned Advocate for the Appellant.



10.     The core issue in this proceeding is whether the requirement to

enforce the      right of      pre-emption       under     Section 236            of the

Mohammedan law has been met.



11.     Sections 226, 231 and 236 of the Mohammedan law, quoted in

the impugned judgment, are reproduced as follows:


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        226. Pre-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 has
        been sold to another person.


                The policy of the law behind pre-emption is the same as
        that of Section 4 of the Partition Act namely (I) to prevent the
        introduction of a stranger into a residential house and (ii) to
        bring the property under one owner eventually.


        231. Who may claim pre-emption.- The following three
        classes of persons and no others, are entitled to claim pre-
        emption, namely:-

        (1)    a co-sharer in the property (w) (shafi-i-sharik);

        2)       a participator in immunities and appendages, such as a
        right of way or a right to discharge water (y) (shafi-i-khalu);and

        3)              owners of adjoining immovable property (shafi-i-
        jar), but not their tenants (a), nor persons in possession of such
        property without any lawful title.

        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(d). The right, however, may
        be claimed by a co-sharer(e).

        236. Demands for pre-emption – 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 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 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
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                  (b).    in the presence at least of two witnesses. This
                          formality is called talab-i-ishhad (demand with
                          invocation of witnesses).


12.     The Appellant was required to satisfy the two (2) demands for

pre-emption contemplated under Section 236 of the Mohammedan law.

The Appellant contends that the demands for pre-emption were made

on 17.04.2008 and 18.04.2008. The Appellate Court, while addressing

the said issue in paragraph No. 23, observed as follows:



           23.      To support oral testimony plaintiff produced on record
           the notice issued by him through his advocate to defendant no.1
           at Exh.48 dated 24/10/2008. While perusing the said notice
           therein it is nowhere mentioned that on 17/04/2008 and
           18/04/2008 for two times plaintiff made demand in the
           presence of two witnesses from defendant no.1 to sale the suit
           property to him for Rs.1,00,000/- Plaintiff is an advocate by
           profession. If, plaintiff had really made first demand on
           17/04/2008 in the office of Sub-Registrar from defendant no.1
           and thereafter on 18/04/2008 made second demand from
           defendant no.1 in the presence of two witnesses then in that
           case he could have definitely mentioned these material facts in
           his notice at Exh.48 issued to defendant no.1. However, these
           material facts are absent in notice. On the contrary, in notice at
           Exh.48 dated 24/10/2008 it is mentioned in para no.2 that,
           "आम्या अि लांना नुक्याच िमळाले ्या माि तीरमाणे तु् ी जमीन खरेदी केली
           आ े". On the basis of above averments made in notice at Exh.48
           and absence of making reference about material facts of two
           times made demand, it is proved that, plaintiff has not made
           first time demand to sale suit property from defendant no.1 on
           17/04/2008 and on 18/04/2008 for second time plaintiff made
           demand from defendant no.1 to sale the suit property. Thus,
           plaintiff failed to prove that, he made two times demand as
           required under Section 236 of Mohammedan Law.




13.     The Appellate Court, on appreciation of the evidence on record,

found that the demands for pre-emption of 17.04.2008 and 18.04.2008,
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as claimed by the Appellant, were not established, as they, if made,

ought to have been reflected in the Notice at Exhibit-66, which pertains

to the subject matter of the suit. The observation of the Appellate Court

that the Appellant was an advocate by profession is made in the context

that had the demands for pre-emption as claimed by the Appellant in

the plaint been factually made, details of the factual matrix would have

formed part of the notice at Exh-66. The absence of such a vital and

relevant aspect of the matter in the notice at Exh-66 that preceded the

filing of the suit established that no such demands were made.



14.     The statement in the notice at Exh.66, dated 24/10/2008, para

no.2, that "आम्या अि लांना नुक्याच िमळाले ्या माि तीरमाणे तु् ी जमीन खरेदी

केली आ े", is itself sufficient to conclude that there was no compliance

with the demand for pre-emption as required under Section 236 of

Mohammedan Law, as rightly held by the Appellate Court.



15.     The issue in this case is not whether a legal notice is required

under Section 236 of the Mohammedan Law. The question is whether

the Appellant has established the mandatory requirement for

maintaining a suit for preemption (i.e. demands for pre-emption). On

appreciation of the facts, the Appellate Court found no compliance with

Section 236 of the Mohammedan Law and reversed the Judgment and

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Decree dated 07.09.2017 passed by the Trial Court, thereby dismissing

Regular Civil Suit No. 44 of 2009. The findings of the Appellate Court

are based on the material on record. There is no perversity in the said

findings.



16.       A statute conferring the right of pre-emption is to be construed

strictly, not liberally. The Appellate Court found no compliance with the

requirements under Section 236 of the Mohammedan Law. The

Appellant, who was claiming the right of pre-emption under the

Mohammedan Law, failed to establish his claim within the four corners

of the Mohammedan Law.



17.       Useful reference can be made to the enunciation of the Hon’ble

Supreme Court in the case of SIB Nath Chatterjee vs. Tulsidas

Chatterjee & Ors1, in paragraphs 16 to 19, which reads thus:-


               16.    In Bishan Singh v. Khazan Singh4, a four-Judge
               Bench of this Court approved the decision of Allahabad
               High Court rendered by Mahmood, J. in Gobind Dayal v.
               Inayatullah5 wherein the right of pre-emption was
               described as under:

               “It (right of pre-emption) is simply a right of substitution,
               entitling the pre-emptor, by means of a legal incident to
               which sale itself was subject, to stand in the shoes of the
               vendee in respect of all the rights and obligations arising
1     2026 SCC OnLine SC 665




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        from the sale, under which he derived his title. It is, in
        effect, as if in a sale deed the vendee's name were rubbed
        out and pre-emptor's name inserted in its place.”

        And thereafter, this Court summarized the law relating to
        the right of pre-emption as under:

        “To summarize : (1) The right of preemption is not a right
        to the thing sold but a right to the offer of the thing about
        to be sold. This right is called the primary or inherent
        right. (2) The pre-emptor has a secondary right or a
        remedial right to follow the thing sold. (3) It is a right of
        substitution but not of re-purchase i.e., the pre-emptor
        takes the entire bargain and steps into the shoes of the
        original vendee. (4) It is a right to acquire the whole of
        the property sold and not a share of the property sold. (5)
        Preference being the essence of the right, the plaintiff
        must have a superior right to that of the vendee or the
        person substituted in his place. (6) The right being a very
        weak right, it can be defeated by all legitimate methods,
        such as the vendee allowing the claimant of a superior or
        equal right being substituted in his place.”

        17.     Following the above decision, in Radhakishan
        Laxminarayan Toshniwal v. Shridhar Alshi6, a five-Judge
        Bench of this Court held that there are no equities in favor
        of a pre-emptor, whose sole object is to disturb a valid
        transaction by virtue of the rights created in him by
        statute. Therefore, to defeat the right of pre-emption by
        any legitimate means is not fraud on the part of either the
        vendor or the vendee and a person is entitled to steer
        clear of the law of preemption by all lawful means.

        18.     In Mohd. Noor v. Mohd. Ibrahim7, following the
        decision in Radhakishan (supra), it was observed that
        right of pre-emption has not been looked upon favorably
        as it operates as a clog on the right of the owner to
        alienate his property. Therefore, a person claiming right of
        pre-emption under a statute must strictly fall within the
        four corners of the provisions contained therein.

        19.      Upon consideration of various decisions of this
        Court, in our view, what is settled is that the right of pre-
        emption is a weak right. There are no equities in favor of
        the pre-emptor. As a result, such right can be defeated by
        any lawful means. Besides, it is considered a clog on the
        right of the owner to alienate his property, therefore, the
        right, if conferred by a statute, must be exercised strictly
        in terms of the statute. As a sequitur, the statute
        conferring the right of pre-emption is to be construed
        strictly and not liberally.
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                     18.     The Appellant has failed to prove that the demand for pre-

                     emption was made as required under Section 236 of Mohammedan Law

                     and thus failed to exercise the right of pre-emption, if any, strictly in

                     terms of the statute. Accordingly, the contention of Mr. Prajakt

                     Arjunwadkar, learned Advocate for the Appellant, that the Appellate

                     Court erred in not appreciating that the Appellant claims a right of pre-

                     emption as an owner of adjoining immovable property, which is

                     specifically covered under Sub-Section (3) of Section 231 of Mulla's

                     Mohammedan Law and that the plea of co-sharer was merely an

                     addition or alternative plea, would pale into insignificance.



                     19.     In the facts and circumstances of the present case, I do not find

                     any perversity, let alone any error, in the impugned Judgment. No

                     substantial question of law arises for consideration in this Appeal under

                     Section 100 of the Code of Civil Procedure, 1908.



                     20.     Second Appeal No. 92 of 2026 is dismissed. No orders as to costs.



                     21.     As the Second Appeal No. 92 of 2026 is disposed of, nothing

                     survives in the Interim Application (ST) No. 2999 of 2026, which stands

                     disposed of.

        Digitally
        signed by                                                     (ASHWIN D. BHOBE, J.)
        ARJUN        Arjun                             13
ARJUN   KRISHNA
KRISHNA RODGE
RODGE   Date:
        2026.08.28
        14:28:44
        +0530