SHANKER SINGH Vs. NAHAR SINGH

JUDGEMENT

(1.) THE question which was raised by the learned counsel for the defendant -appellant in this second appeal is as to whether the suit for pre -emption could have been decreed in respect of sale of Khatedari rights in agricultural land, in accordance with the law which prevailed before the promulgation of the Rajasthan Pre -emption Act, 1956, in the areas comprised in the former State of Mewar.

(2.) THE plaintiff claimed to be co -sharer with defendant No. 3 Bhupal Singh, as also a sharer in appendages in certain agricultural lands, of which they were Khatedar tenants. It was claimed by the plaintiff that the agricultural lands in dispute were formally owned and possessed by the plaintiff but subsequently he was recorded as Khatedar tenant in respect thereof, while in respect of some of the lands the plaintiff and defendant No. 3 were jointly entered as Khatedar tenants. The right of pre -emption was claimed on the basis of custom prevailing in Rajasthan and which was judicially recognised. It was alleged that the defendant No. 3 had sold his Khatedari rights in the lands in dispute to defendant No. 2 by a registered sale deed dated March 23, 1965 and it was in respect of the said sale that pre -emption right was claimed by the plaintiff, as a co -sharer and a participator in immunities and appendages. The defendant in his written statement, besides other pleas, denied the plaintiff's claim regarding the customary right of pre -emption prevailing in that area of Rajasthan.

(3.) ISSUE No. 6 was framed by the trial court on this question as to whether the right of pre -emption was applicable to agricultural lands in the State of Rajasthan. The trial Court held that the law of pre -emption was applicable to areas comprising in the former State of Mewar by custom which was judicially recognised and the said custom of pre -emption was co -extensive with the principles of Mohammedan law. It was observed by the trial Court that neither party had produced any decision showing that the custom of pre -emption was not applicable in respect of agricultural lands in the former State of Mewar and that as the law was co -extensive with Mohammedan Law, it was ordinarily applicable to sale of agricultural lands. The trial Court pointed out that the defendant had failed to cite even a single instance where the right of pre -emption on the basis of custom had been denied in respect of agricultural lands. On the basis of this finding, the plaintiff's suit for preemption was decreed by the Civil Judge. Chittorgarh on 9 -9 -1968.