RAGHUNANDAN SINGH Vs. MULAK RAJ SINGH

JUDGEMENT

(1.) THE two appeals before us are by the vendee-defendant against decrees passed in favour of rival preemptors in respect of a single transfer by way of sale. THE point upon which the two Courts below have differed is in reality a simple one. It depends upon the very peculiar constitution of the mahal to which the share which was the subject-matter of the transfer sought to be preempted appertains, This mahal, known as mahal Lalman, includes shares in sixteen different villages. A single wajib-ul-ars was drawn up for the entire mahal. In the records of proprietary rights drawn up for each of the sixteen villages there is a separate specification of the co-sharers in mahal Lalman and these co-shares are assigned to different thoks in each particular village. THE transfer with which we are concerned included fractional shares in six different villages. THE pre-emptive clause of the Wajib-ul-arz placed persons entitled to claim pre-emption in three categories, near co-sharers co- sharers in the same thok as the vendor, and co- sharers in thoks other than that of the vendor. It has been finally determined by the Courts below that neither the vendee nor the pre-emptor falls in the category of near co-sharers, and we have not been asked to re-consider that finding. Admittedly, neither the preemptor nor the vendee is a co-sharer in the same thok with the vendor. THE Trial Court held that both fell in the third category of co- sharers in thoks other than that of the vendor, and on the basis of this finding dismissed both the claims for pre-emption. THE lower Appellate Court has based its decision upon reasoning which we do not find it easy to follow even after hearing a full exposition of the point from the learned Counsel who represents the respondents. It seems to us to enter into metaphysical speculations which should not be permitted to influence the decision of the plain question now before the Court. That question is whether the vendee, as well as ,.|he pre-emptor does or does not fall under the category of being a co-sharer in mahal Lalman, holding a share in a thok other than the thok of the vendor. It seem to us that this question can only be answered in the affirmative. THE learned District Judge has found that in one village only, namely Mohi-uddinpura, are the names of the vendee and the preemptors to be found in the record of proprietary rights as co-sharers in thoks other than that of the vendors. In the remaining five villages affected by this sale- deed the preemptors appear as co-sharers in thoks other than that of the vendor while the name of the vendee d oes not appear at all. If, however, it be conceded, as it must be, that the Record of Eights on the basis of which pre-emption is claimed was drawn up for the mahal Lalman considered as a single unit, it follows that every thok appertaining to that mahal what ever village it may be situated, is a thok of mahal Lalman. THE learned District Judge has really inserted a fourth category in the Record of Eights between the second and the third. He thinks that it must have been intended to give preference to co-sharers who shared in the proprietary rights in thoks other than that of the vendor, but in the same village as the vendor, as against co-sharers in tholes other than that of the vendor situated in different villages. We can only say that, whatever the reasons for it may be, the wajib-ul-arz does not contain such a category and we are unable to read any such category into the specification therein given. We, therefore, accept these appeals and set aside the decree of the lower Appellate Court and restore those of the Court of first instance, with costs in favour of the defendant, Raghunandan Singh, throughout, including in this Court fees on the higher scale.