RAI KRISHNA BAHADUR Vs. GANGA PRASAD SAH

JUDGEMENT

(1.) This is a plaintiff's second appeal from concurrent decrees of the Courts below dismissing his claim for pre-emption. This second appeal was first heard by Dhavle, J. A number of Bench decisions, which, it was argued, were con: flicting, were cited to him and he accordingly thought that it would be better if the matter were heard by a Bench. The case, has accordingly been placed before this Bench.

(2.) The plaintiff brought this suit against; the defendants claiming to pre-empt certain property, which had been sold by defendants 3 and 4 to defendants 1 and 2. According to the plaintiff, he and defendants 3 and 4 owned lands in village Dhariawganj appearing in khatas Nos. 273 and 190. Defendants 3 and 4 owned a half share in these lands and had sold the same to defendants 1 and 2. The plaintiff claimed that he had a; right to pre-empt these lands so sold to; defendants 1 and 2 who were outsiders and; not previously interested in the land. The, defendants by their defence admitted the: transfer in question but contended that that plaintiffs had no right of pre-emption. When the case came before the learned Munsif, this preliminary point was raised, and the learned Munsif came to the conclusion that; the plaintiff had no right of pre-emption and accordingly dismissed the suit. On appeal the learned Subordinate Judge upheld the decision of the learned Munsif and dismissed , the appeal with costs.

(3.) Before this Bench it has been argued that both the Courts were wrong in coming to the conclusion that the plaintiff had no right of pre-emption. It is common ground that the land in question consisted of some old parti land and a mango orchard. The vendors were not the proprietors of the land, and there is no doubt that the proprietor was one Rai Babu Raghunath Prasad Sahu and that is clear from the copy of the khatian which was filed in this case. In short the vendors were tenants of this land and not the owners. Both the Courts below were of opinion that persons holding tenancy interests did not have a right to pre-empt and accordingly dismissed the claim.