HANMIAH Vs. KORI KOKANTI BASAPPA

JUDGEMENT

(1.) THIS is a second appeal by the defendant against whom a suit for possession by enforcing the right of pre -emption was decreed by the Original Court, and the decree was affirmed in appeal by the District Court.

(2.) THE plaintiff had alleged that he is a pattedar of Survey No. 30/2 which is contiguous to Survey No. 30/1. Both these plots were part of the same field before, which was subsequently split up into two, and each given a separate number. The latter number belonged formerly to defendant Nos. 2 and 3 who passed it on by sale to defendant No. 1. The plaintiff states that as soon as he knew of the sale, he made the two demands requisite for enforcing the right of pre -emption, under the Mohammedan Law. But the defendant No. 1 refused to hand over the field on payment of consideration. The defendants denied the right of the plaintiff as a pre -emptor as also the facts mentioned in the plaint, and contended besides, that the defendant No. 1 is a protected tenant against whom the right of pre -emption can only be enforced by a person who is himself protected under S. 5 Cl. 2, Hyderabad Land Alienation Act. The defendants also denied the fact of plaintiff's making the two demands, under the Mohammedan Law and contended that as the plaintiff is neither share -holder nor a shikmidar, pattedar or a joint -pattedar of the land in dispute, under the Revenue Law too he has no right of pre -emption.

(3.) I will first consider the right of the plaintiff from the point of view of the provisions of the Hyderabad Land Alienation Act, S. 5, CI. 2 which deals with the right of pre -emption against a cultivator who is protected. The learned Advocate for the respondent tries to get over this hurdle in two ways: firstly, admitting 'that at the time of the sale and the institution of the suit and at the time of the decree under appeal he was not a protected tenant, he stresses that he has acquired a protected status under the Hyderabad Land Alienation Act on 7 -1 -1356 P., during the pendency of this second appeal and it is immaterial whether he enjoyed that status before or not. Secondly that the Hyderabad Land Alienation Act itself now stands repealed and under S. 103 of the new Tenancy Act, no special privilege of the defendant No. 1 can be recognised. The effect of repeal, according to the Full Bench decision of '38 Dec L R 104', is that the provisions of the new Act will apply to the pending case.