THAKURAIN SHEORAJ KUNWAR Vs. THAKUR HARIHAR BAKSH SINGH

JUDGEMENT

(1.) This Appeal is concerned with a claim to pre-emption under the Oudh Laws Act, 1876, in respect of three entire villages and two pattis or portions of two other villages forming part of a taluqa called Saraura.

(2.) By Section 9 of the Act the right of pre-emption where it exists is given on the occasion of a sale. 1st, to co-sharers of the subdivision (if any) of the tenure in which the property is comprised in order of their relationship to the vendor ...; 2dly, to co-sharers of the whole mahal in the same order; 3rdly, to any member of the village community; and 4thly, if the property be an under-proprietary tenure, to the proprietor. and the section adds this provision: Where two or more persons are equally entitled to such right the person to exercise the same shall be determined by lot.

(3.) There were three brothers, sons of one Basti Singh, whose names were Baldeo Bakhsh, Balwant Singh, and Uman Parshad -Baldeo Bakhsh died leaving one son, Bisheshar Bakhsh- Balwant died leaving two sons, Sitla Bakhsh, who died childless and Ganga Bakhsh. Ganga Bakhsh had obtained a sanad of taluqa Saraura, but in 1864 on the occasion of the regular settlement a compromise was made between Ganga Bakhsh, Bisheshar Bakhsh, and Uman Parshad, by which one-half of the taluqa was assigned to Ganga Bakhsh as superior proprietor and the other half to Bisheshar Bakhsh and Uman Parshad in equal shares in under-proprietary right, they paying the Government revenue plus malikhana at the rate of 10 per cent, to the Taluqdar, and being jointly liable to him in respect of the same as rent. Bisheshar Bakhsh died childless and his share devolved on Uman Parshad. Uman Parshad died and his property devolved upon Gajadhar his grandson, and Ganesh Bakhsh, his son. In 1893 a partition was made between Gajadhar and Ganesh Bakhsh under which the property in question in this suit was assigned to Gajadhar. A decree was made in accordance with the partition, and mutation of names was effected accordingly, but no separate engagement was made for payment of the Government revenue in respect of the three entire villages or the two pattis assigned to Gajadhar.