BAHENA CHAMPAT Vs. KARNU SAMBHA

JUDGEMENT

(1.) SURVEY No. 6 of mouza Wanjri, tahsil Wani, district Yeotmal, is sub -divided into several pot hissas. Survey No. 6/2 belonged to one Ramchandra; survey No. 6/3 belonged to one Udhao and Nana; and survey No. 6/4 belonged to Bahena, the present plaintiff. Ramchandra, the occupant of survey No. 6/2 sold his holding (No. 6/2) to the present defendants on March 15, 1950. Thereafter, Nana, one of the co -owners of survey No. 6/3, filed Civil Suit No. 88 -A of 1950 for pre -empting survey No. 6/2 which had been sold by Ramchandra to the defendants, on the ground that the defendants were strangers and, therefore, Nana had a right to pre -empt the said holding survey No. 6/2. On March 9, 1951, a consent decree was passed in the aforesaid suit giving in effect Nana the right of pre -emption. In the meanwhile, that is to say, on March 29, 1950, Udhao and Nana together sold their holding survey No. 6/3 to the present defendants. The plaintiff, the owner of survey No. 6/4, has filed the present suit for exercising her right of pre -emption in respect of survey No. 6/3 sold to the defendants by Udhao and Nana. The lower appellate Court held, that it could not be said that the sale in favour of the defendants effected on March 29, 1950, had been executed by Udhao and Nana in favour of the persons who were themselves not occupants. Accordingly, the learned appellate Judge dismissed the suit. The plaintiff has come to this Court in second appeal.

(2.) MR . Padhye, who appears for the plaintiff, contends that the effect of the consent decree which was passed on March 9, 1951, was to substitute Nana in place of the original vendees (defendants) under the sale deed dated March 15, 1950. In other words, the contention is that Nana's right must retrospectively operate from March 15, 1950, which is the date of sale effected in favour of the defendants by Ramchandra. If this is the position, then Mr. Padhye proceeds to argue that on the date when Udhao and Nana sold survey No. 6/3 to the defendants, the defendants could not be stated to be the owners and, therefore, the occupants of survey No. 6/2. The contention no doubt appears to be attractive, but I do not think that it is possible for me to accept it. This contention ignores the effect of the consent decree. The consent decree, if at all it was to operate as a decree for pre -emption, must stand on no higher footing than a decree which could have been passed by the Court itself under Order XX, Rule 14, of the Code of Civil Procedure. In other words, it must have the same effect as the decree which could have been passed by the Court itself under Order XX, Rule 14. Then Clause (b) of Sub -rule (1) of Rule 14 of Order XX says that the plaintiff's title to the property in question shall be deemed to have accrued from the date of such payment (purchase -money) to be paid by the plaintiff. So, if the title of the pre -emptor in regard to the property in respect of which the right of pre -emption is exercised dates only from the date when the amount of purchase -money is paid, then it must mean that Nana in this case became the owner of the property sometime in March 1951. Rut Nana's becoming the owner of the property in this way does not make any difference so far as the status of the defendants in regard to their sale -deed of March 29, 1950, is concerned. We have to see whether the sale -deed of March 29, 195O, was executed by Udhao and Nana in favour of the persons who were themselves occupants. In this case, on that date, that is to say, on March 29, 1950, the defendants were the owners and also occupants of survey No. 6/8. Therefore, the right of pre -emption which is now sought to be exercised by the plaintiff cannot be so exercised as against the persons who were themselves occupants at the time when they took the sale deed from Udhao and Nana. Mr. Padhye has referred to two cases ; one is reported in Collector Singh v. Madari Lal and the other in Md. Mustafa Husain Khan v. Sri Ram : AIR1927All202 . He relies upon these cases for the proposition that the right of the pre -emptor dates back to the date of the actual sale of the land in respect of which pre -emption is sought for. It must be noted that in neither of these two cases has there been a reference to Order XX, Rule 14. Further, to my mind only because the effect of pre -emption is substitution of the pre -emptor in place of the person who has pre -empted, it does not mean that such substitution takes effect from the date of the actual sale deed which is executed in favour of the defendants. Therefore, in this case, it cannot be said that the plaintiff had the right to pre -empt the property of the defendants purchased by them on March 29, 1950. Accordingly the appeal fails and must be dismissed with costs.