BANWARI RAM Vs. MUHAMMAD YAR KHAN

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for pre-emption. The suit was filed by Mohammad Yar Khan. He made a waqf alalaulad of his entire property. He sued however first of all in his private capacity. During the course of the proceedings in the trial Court he filed an application for the amendment of plaint. This application was allowed and by his amendment the plaintiff described himself as mutwalli. Both the Courts below have granted decree for pre-emption.

(2.) In appeal it was urged for the appellants that inasmuch as the plaintiff was not a co-sharer within the meaning of Section 4, Agra Pre-emption Act, he was not entitled to maintain a suit for pre-emption. This contention in our judgment is sound. A co-sharer is defined in Section 4, Agra Pre-emption Act, as a person other than a petty proprietor, entitled as proprietor to any share or part in a mahal or village whether his name is or is not recorded in the register of proprietors.

(3.) Now the plaintiff having divested himself of his entire property and that property having vested in the Almighty the plaintiff was not a person entitled to any share or part in the mahal or village in which that property sought to be pre- empted is situated. He is not therefore entitled to maintain a suit for pre-emption. In this connexion we refer to the case in Muhammad Baksh V/s. Ram Prasad . In that case a Bench of this Court held that a person who had divested himself of his entire property by means of a waqf deed was not entitled to resist a claim for pre- emption upon the precise ground that he was no longer a cosharer in the village in which the property sought to be pre-empted was situated. The respondents relied on the case in Mohommad Pamal Shah Khan V/s. Mohammad Salamat Ali Khan . In that case a Bench of this Court held that if a person is liable for the payment of the land revenue along with other co-sharers in the village, then he must be deemed to be a cosharer in spite of the fact that the estate in the share may not vest in him. No doubt for the purposes of the Agra Pre-emption Act the person who is liable in respect of land revenue is regarded as a cosharer. "Cosharer" is not defined in the Agra Tenancy Act but is defined in the Agra Pre-emption Act. The plaintiff having executed a waqf deed under which he divested himself of his entire property is no longer a cosharer as defined in the latter Act. He is not therefore entitled to maintain a suit for pre-emption.