MOHAMMAD ZAMAN KHAN Vs. BAHADUR SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption. The suit was one for pre-emption of Bundelkhand land. It was defended by both the vendor and the vendee. The trial Court granted a decree for pre-emption. The learned Civil Judge in the lower Appellate Court however recalled the decree of the Munsif and dismissed the suit. His decision has been upheld by this Court in second appeal. The facts of the case are not in dispute. The plaintiff is a cosharer in the mahal in which the property in dispute is situated. The property is Bundelkhand land and the vendee is a stranger to the mahal. Apart from the special provisions in the Agra Pre-emption Act and the Bundelkhand Alienation of Land Act, the plaintiff is entitled according to local custom to pre-empt. His suit has been dismissed however upon the ground that his right to pre-empt is destroyed by the provisions of Section 7, Pre-emption Act. Section 7 is in the following terms: Nothing in this Act shall confer a right of pre-emption on any person who is, under the Bundelkhand Alienation of Land Act, 1903, not entitled to purchase the property in dispute.

(2.) Now under Section 3, Bundelkhand Alienation of Land Act, the plaintiff being a non-agriculturist must obtain sanction of the Collector to purchase the land in dispute. The relevant portion of Section 3 is as follows:

(3.) (1) A person who desires to make a permanent alienation of his land shall be at liberty to make such alienation where (a) the alienor is not a member of an agricultural tribe; or (b) the alienee is either a member of the same agriculturist tribe as the alienor, or is a member of an agricultural tribe and a resident of the district in which the land is situated. (2) Except in the cases provided for in Sub-section (1), a permanent alienation of land shall not take effect as such unless and until sanction is given thereto by the Collector of the district in which the land is situated: Provided that sanction may be given after the act of alienation is otherwise completed. 3. It will be observed that under this Section certain persons are entitled to purchase Bundelkhand land without any restriction. Other persons, viz. non-agriculturists, must obtain the sanction of the Collector before any purchase of Bundelkhand land is to be effective. The Section does not prohibit the purchase of Bundelkhand land by a non-agriculturist. On the contrary, the Section specifically provides that a purchase of Bundelkhand land without the sanction of the Collector may be subsequently validated by the sanction of the Collector. The learned Single Judge who disposed of the second appeal held that the sanction given to the appellant to purchase the property in dispute and to bring a suit for pre-emption was valueless. In the course of his judgment he observes: Once the vendor had sold the property to the vendee no sanction could be given by the Collector for the sale of the property by the vendor to the vendee. The sanction contemplated by Section 3, Bundelkhand Alienation of Land Act, must have reference to those cases and to those cases alone in which a cosharer has agreed to transfer his property to the person obtaining the sanction, and a Collector obviously cannot sanction the sale of property to a specified person when that property has already been sold by the vendor to another person. The sanction to purchase given to the plaintiff by the Collector in the present case was therefore meaningless and could not entitle the plaintiff to exercise the right of pre-emption.