DHONKAL Vs. RUGHA

JUDGEMENT

(1.) THIS second appeal by defendant Dhonkal son of Bhoma has been referred to a division bench of this Court by an order of a learned single Judge dated August 28, 1962, as it raises an important question as to the validity of Clause '3rdly', read with the subsequent provision about the drawing of lots of Section 9 of the Ajmer laws Regulation, 1877, hereinafter referred to as the Regulation.

(2.) THE facts of the case may be stated briefly for they are not in dispute. Defendant-appellant Dhonkal son of Bhoma purchased 9 bighas and 7 biswas of agricultural land in village Tihari, bearing Khasra No. 1133, from defendant dhonkal sort of Hardeo of that village. The sale-deed was executed on October 6, 1950. Plaintiff Rugha filed a suit on October 4, 1951, in the court of Sub-Judge first Class, Ajmer, against both of them, for preemption, alleging that he was entitled to purchase the land in preference to Dhonkal son of Bhoma. The claim was denied by the defendant-vendee who took some other pleas also but it is not necessary to refer to them as they were given up during the course of the trial or in the lower appellate court. The plaintiff, it appears, set forth his claim on the said clause '3rdly' of Section 9 of the Regulation. The suit was decreed by the trial court and an appeal was therefore preferred by the vendee, but without success. The only point which was pressed for consideration at the first appeal was whether the provisions of the said-clause were ultra vires the Constitution and that is the sole point for decision in this second appeal before us.

(3.) IT would be advantageous, for a proper appreciation of the controversy, to reproduce the whole of Section 9 of the Regulation, which runs as follows,-" 9. Devolution of right when property to be sold or foreclosed is proprietary tenure.-- If the property to be sold or foreclosed is a proprietary tenure, or a share of such a tenure, the right to buy or redeem such a property belongs, in the absence of a custom to the contrary,-1st, to co-sharers of such tenure, in order of their relationship to the vendor or mortgagor; 2ndly, to co-sharers of the whole mahal in the same order; and 3rdly, to any member of the village-community. Where two or more persons are equally entitled to such right, the person to exercise the same shall be determined by lot. " the term "member of the village-community" occurring in the section has not been defined in the Regulation. Moreover, it suffers from vagueness because a person may claim to be a member of a village community on the ground that he is a resident of the village, while others may advance a similar claim for the reason that they cultivate the land in that village or follow other vocations there. There might be yet others who may claim to be members of a village-community on account of their ownership of property in the village, and so on. The vagueness of the definition need not however, detain us in this case for, as would appear from the judgment of the trial court, it was admitted by the parties during the course of the trial that none of them fell within the category of the first two classes of preemptors under the aforesaid Section 9 of the Regulation and that both of them belonged to the third category "being members of the village-community". We shall therefore proceed to consider the question whether Clause '3rdly' of Section 9 of the Regulation and the subsequent provision thereof about the drawing of lots are valid in a case where the rival claimants are members of the same village-community. In other words, the point for decision before us is whether the provision in the Regulation that if two or more "members of the village-community" are equally entitled to buy or redeem the property the matter shall be determined by lots, is valid under the Constitution.