UTTAM CHINDHAJI Vs. TULSIRAM BALIRAM

JUDGEMENT

(1.) THE question referred to the Full Bench is:

(2.) IN order to answer this question, it is necessary to refer to some of the provisions contained in Chapter XIV of the Bearar Land Revenue Code, which conferred the right pre-emption in certain cases. Sub-section (1) of S. 174 provides that the rights conferred by this Chapter upon the occupants in a survey number in respect of transfer of interests in that survey number shall be deemed to be rights of pre-emption and they shall be enforceable only in the manner and to the extent provided in this Chapter. Sub-section (3) provides that such rights shall not arise when an occupant in a survey number transfers his interest or portion thereof to another occupant in that survey number, or when the transfer is made with the consent, previously obtained in writing, of all the occupants in the survey number. Sub-section (1) of S. 184 provides that where an occupant in a survey number transfers his interest or any part thereof for a consideration which consists in whole or in part of land, the other occupants in the survey number shall have a right to pre-empt the interest transferred. Sub-section (2) provides that such right may be enforced by civil suit, and in such suit the court shall first examine the whole transaction whereby the exchange was effected, and if it appears that it effected a consolidation on the land held by either party to the transfer, it shall dismiss the suit. The word "consolidation" used in sub-section (2) of S. 184 is not defined in the Code. Its dictionary meaning is "combination into a compact mass, single body, or coherent whole; combination, unification". The word "consolidate" is defined as meaning "to make solid; to form into a solid or compact mass; to unite into one; to solidify". As to what meaning should be given to this word used in sub-section (2) of S. 184 has been the subject of conflicting decisions. In some cases , it has been held that consolidation means consolidation of two parcels of land, which can be held as one unit under the Berar Land Revenue Code. As under the rules now in force, two survey numbers or portions of two different survey numbers cannot ordinarily be amalgamated, it has been held that consolidation can only be between two sub-divisions of the same survey number. This was the view taken in Prabhulal v. Kisan Raoji, 1954 Nag LR 1. The same view was taken by another Division Bench of this Court in Second Appeal No. 94 of 1954 D/- 12-2-1954 (Nag ). A contrary view, was however, taken in Second Appeal No. 987 of 1946 and Second Appeal No. 115 of 1945. In those cases, it was held that there could be consolidation between one survey number and a subdivision of another survey number. The question, which we have to decide, is which of these two views is correct. (2a) In our opinion, the answer to the question is to be found in sub-section (3) of S. 174 of the Berar Land Revenue Code. Under this sub-section, a right of pre-emption cannot arise when an occupant in a survey number transfers his interest in that land to another occupant of the same land. The right of pre-emption under S. 184 can, therefore, only arise when the transfer is to an occupant of another land to whom I shall refer, for the sake of convenience, as a stranger. The stranger can then defeat the right of pre-emption claimed against him by showing that there was a consolidation of the land held by either party to the transfer. In the case of a transfer to a stranger in respect of which alone the right of pre-emption can be claimed, consolidation can, therefore, ordinarily only be between his other land and the land which he has obtained in exchange. In other words, consolidation may be between two survey numbers or portions of two different survey numbers.

(3.) THE words in sub-section (2) of S. 184 also are "consolidation in the land held by either party. " If, therefore, as a result of the transfer, any party comes to hold two different portions of land, which are contiguous to one another and which can be united, there would be a consolidation in the land held by him. There is no sufficient justification for restricting the meaning of the above words and holding that consolidation can only be between two portions of the same survey number.