RAMKRISHNA TUKARAM TIDKE Vs. NAMDEO SONAJI TIDKE

JUDGEMENT

(1.) THIS second appeal arises out of a suit for pre-emption under the Berar Land Revenue Code. Fields survey Nos. 35/1 and 33/1 of mouza Sakri, taluk Murtizapur, originally belonged to Garbad Vithuji Kunbi and Tulsiram Vithuji Kunbi, residents of Sakri, jointly. The said Garbad, presumably as the manager of the family, mortgaged both the fields in full to the defendant Namdeo Sonaji Tidke on 12th September 1927 for a consideration of Rs. 300. Subsequently in the year 1929, a partition took place between Garbad and his brother Tulsiram. According to the said partition the two fields were subdivided. Fields survey Nos. 35/1-A and 33/1-A fell to the share of Garbad. He mortgaged his field 35/1-A on 23rd March 1931 with Ram-krishna Tukaram, the plaintiff. On 9th January 1933, Garbad sold the field to Tukaram, the father of Ramkrishna, who undertook to satisfy the debt due to Ramkrishna under the terms of the sale. On 11th January 1935, Namdeo, the defendant, brought a suit, which is Civil Suit No. 5A of 1935 on the file of the Subordinate Judge, second class, Murtizapur, on the basis of the mortgage in his favour against Garbad and Tulsiram wherein both Ramkrishna, the present plaintiff who purported to be the mortgagee under the mortgage dated 23rd March 1931, and his father Tukaram who was the purchaser of the property mortgaged under the mortgage dated 23rd March 1931, were joined as parties. The suit was decided on 9th March 1936. The Court released the share of Tulsiram from the mortgage and passed a preliminary decree for foreclosure against Garbad's interests in the property which was represented by Field No. 35/1A as one of the items. In 1938 Ramkrishna the present plaintiff purchased Tulsiram's share which was declared free from the mortgage of Namdeo. The final decree was passed on 31st July 1939 against Garbad's interests in the property which included Field No. 35/1A. The present plaintiff and his father, who were parties to the mortgage suit, did not redeem the mortgage but suffered a foreclosure as against Field No. 35/1A. After having suffered a foreclosure decree to be passed against the said field which they occupied, the present plaintiff Ramkrishna filed the present suit on 13th October 1939 for pre-emption of the said field on the ground that he was an occupant in the right of Tulsiram with respect to the other sub-division of the field and secondly on the ground that he was joined as a party to the mortgage suit not as a purchaser but as a mere mortgagee. The defendant contested the suit urging that inasmuch as the present plaintiff was a party to the previous mortgage suit and was foreclosed he had no right to preempt under the Berar Land Revenue Code.

(2.) IN the further pleadings that were made in the case the plaintiff admitted that there were three pothissas of survey No. 35, namely, 35/1, 35/1-A and 35/2. It was further admitted on behalf of the plaintiff that on the date of the final foreclosure that was passed on 35/1-A the joint family of the plaintiff was the sole owner of each of these three pothissas. Another admission made by the plaintiff in the pleadings recorded on 13th December 1939 is that the plaintiff's father Tukaram was sued in Civil Suit No. 5-A of 1935, namely the mortgage suit, as manager of the joint family of which the plaintiff was a member and which joint family was the purchaser of survey No. 35/1-A by a sale deed dated 9th January 1933. These admissions made by the plaintiff during the course of his pleadings put him out of Court so far as preemption is concerned. Admittedly the plaintiff along with his father is the occupant of all the sub-divisions of survey No. 35 including 35/1-A. Survey No. 35/1-A was foreclosed with the plaintiff as occupant thereof member of the family, it being admitted that the purchase by Tukaram the father of the plaintiff was on behalf of the joint family as manager thereof. This purchase by Tukaram was therefore for the full satisfaction of the mortgage taken by Ramkrishna. The result of this admission is that the plaintiff's mortgage was merged in the sale of the field in the name of Tukaram the father of the plaintiff as manager of the family on 9th January 1933. The plaintiff and his father both being parties to the mortgage suit as occupants of survey No. 35/1-A, they suffered a final foreclosure decree to be passed against that field. The question therefore is Can such an occupant claim to preempt the survey number against which he has allowed a foreclosure decree to be passed simply because he continues to be an occupant with respect to another sub-division of the said survey number? Both the Courts below have answered the question in the negative. The plaintiff comes up in second appeal and raises the same question. Under Section 183(1), Berar Land Revenue Code: When an occupant in a survey-number transfers his interest or any portion thereof by any of the transfers contemplated in Sections 176 and 178, or suffers a final decree for foreclosure as contemplated in Section 177 to be passed against him, and no notice has been given as required by these sections, the other occupants in the survey number shall have a right to preempt the interest transferred, and the plaintiff in the present case can-not call himself "the other occupant." He is the occupant himself of the survey number and as such no right of preemption is given to such a person under Section 183. Section 177 which deals with preemption on foreclosure also uses the words "other occupants" in Clauses (1) and (2) thereof. The occupant who is foreclosed is not the person who can claim preemption simply because he is also the occupant of another sub-division of that survey number. It is some other occupant who was not the occupant of the survey number foreclosed that can claim preemption. Agyaram v. Deorao (12) 8 N.L.R. 161 was referred to in the course of the argument. In that case neither Raibhan nor his legal representative Deorao was the occupant of the mortgaged half share. Bapu v. Anand (13) 9 N.L.R. 143 was also referred to. There the plaintiff was not an occupant of the field he sought to preempt. He was joined with the mortgagor as co-defendant in the mortgage suit in his capacity as surety, and one of these cases refers to the contention of the plaintiff that he is entitled to pre-empt. Damodhar Narayan v. Narayan Gangaji A.I.R. 1941 Nag. 199 was referred to as enabling the plaintiff to claim pre-emption. This case only lays down that where a father-manager of a joint Hindu family consisting of himself and minor sons sells property, one of the sons has a right to pre-empt. In this case at the time of the sale all the sons were minors and the father sold only two annas interest in the property and it was held that the minors were not vendors. It is in the peculiar circumstances of that case, it having been held that the minor suing for pre-emption was not a vendor, that the right of pre-emption was decreed. He was relegated to the position of "the other occupant."