VITHAL NAGOJI Vs. PUNDLIK GANOBA SHOP

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. The facts necessary for the decision of the question involved in the present appeal are shortly these: Bhawsing, the father of defendants 2 and 3, owned S. Nos. 98/2, 157/2 and 134 of Mouza Dongargaon, Taluk Balapur, District Akola. He had mortgaged these with defendant 1 who obtained a decree for foreclosure in Civil Suit No. 255/1928 and obtained possession through Court on 22nd July 1929. The plaintiffs are the co-occupants of the two fields Nos. 157/2 and 134. They instituted the present suit for pre-emption of only one out of the two fields, viz. No. 157/2.

(2.) THE defence was that they could not do so but must pre-empt both the fields. Both the Courts below having rejected the plea in defence held that partial pre-emption could be claimed by the plaintiffs. Defendant 1 has therefore come up to this Court in second appeal. The only point for decision in the present case is if partial pre-emption could be claimed by the plaintiffs. Reliance is placed by the defendant-appellant on the view prevailing in the United Provinces against allowing partial pre-emption Durga Prasad v. Munshi (1884) 6 All 423, Mohindra Man Singh v. Maharaj Singh AIR 1923 All 48 and Mohammad Wajid Ali Khan v. Puran Singh, A.I.R. 1929 P.C. 58. It has however been held by this Court in Ramchandra v. Rupchand AIR 1927 Nag 296 that the right of pre-emption in Berar is based on the specific provisions of the Berar Land Revenue Code, that the Code be treated as exhaustive on the matters in respect of which it declares the law and that therefore the decisions of the Allahabad High Court regarding the conditions in which a right of pre-emption based on village custom can be exercised have frequently no application to a suit for pre-emption by a Berar co-occupant. Section 174 (5), Berar Land Revenue Code, 1928, runs as under: "Where laud situated in more than one survey number is transferred, rights of pre-emption shall arise independently in regard to the portions of such land contained in each separate survey number."

(3.) I hold that the decrees of the Courts below are correct. This appeal therefore fails and is dismissed with costs.