MAHABIR RAI Vs. RAJENDER RAI

JUDGEMENT

(1.) This is a vendees appeal arising out of a pre-emption suit and the sole question that arises for consideration in the appeal is whether the plaintiffs had a preferential right of pre-emption as against the vendees. The zamindari share sold is in village and mahal Puraniyan. Both the plaintiffs and the vendees were cosharers in this village on the date of the sale sought to be pre-empted. The plaintiffs, however, claimed a preferential right of preemption on the allegation that the share sold was in a sub-division of the mahal in which the plaintiffs and the vendors were cosharers and the vendees were not. On this allegation the plaintiffs maintained that they came within class 2 of the pre-emptors prescribed by Section 12, Agra Pre-emption Act, (11 of 1922). Class 2 comprises, "cosharers in the sub-division of the mahal in which the property is situated." The vendees on the other hand alleged that Puraniyan was an undivided mahal and that there were no divisions or sub-divisions of that mahal and asserted that as they were also cosharers in the village the plaintiffs had not a preferential right of pre- emption as against them. In short the vendees case was that they and the plaintiffs fell within class 5 of the pre-emptors recognized by Section 12. Class 5 comprises "cosharers in the village." The Court below relying on an unreported decision of Sulaiman C.J. in S.A. No. 1378 of Markandey Singh V/s. Harkaransingh, Second Appeal No. 1378 of 1932, Decided on 21 August 1934. gave effect to the plaintiffs contention and decreed their suit. The learned Chief Justice in that case made the following observations: But the plaintiff is a cosharer of khata khewat Nos. 3 and 13 and the property sold by the vendor lies in khata khewat Nos. 6 and 13, whereas the defendants by virtue of the deed of exchange have acquired shares in khata khewat No. 14 only. The Court below has held that the plaintiff has no preference as regards khata khewat No. 13 because there is no specific area assigned to this khata in the khewat, although the revenue is separately assessed in each khata. This conclusion is obviously wrong because although no area is assigned, as it could not be, there is a separate khata khewat No. 13 which therefore is undoubtedly a separate and small sub-division of mahal.

(2.) The decision of the appeal depends on the answer to the question whether or not there are divisions and sub-divisions of mahal Puraniyan. A certified copy of the khewat of mahal Puraniyan is on the record and it shows that there are no thoks or pattis in that village. In other words, the mahal is not divided into thoks and pattis. In the column of "Serial number" there are however three serial numbers, viz. 1, 2 and 3, entered in the khewat and in the next column which is the column of "Amount of share and revenue together with cesses" a 5 anna 4 pie share is entered as against each serial number. Further in each serial number the revenue and the cess of the 5 anna 4 pie share is entered separately. Then in the column of cosharers the names of sharers who own the 5 anna 4 pie share of each serial number are entered. The share sold and pre-empted belonged to certain cosharers of serial number 3 and the plaintiffs are also cosharers in that serial number whereas the vendees, on the date of the sale, were cosharers in serial numbers 1 and 2 and not in serial number 3. The plaintiffs case was that each serial number constituted a separate khata-khewat and a separate sub-division of the mahal. The vendees on the other hand urged that the mahal was a joint undivided mahal and the serial numbers were merely indicative of the extent of the share owned by the various sharers entered as against each serial number.

(3.) The patwari of the village was examined as a witness in the case and the pleaders of the parties made certain statements as regards the constitution of the village. From the patwari's evidence and the statements of the pleaders it is clear that there are in all 341 plots in the village and all these plots are jointly owned by all the sharers in all the three serial numbers and that the sir land of the cosharers of those numbers is joint. No plot or field is separately assigned to any particular serial number and there is no division in the village showing that any particular area of the village specially appertains to any particular serial number of the khewat. In short all the 341 plots of the village are joint and are owned by all the cosharers in all the serial numbers jointly.