RADHAKISAN JAGANNATH MARWADI Vs. DAULAT MITHARAM KHARODE

JUDGEMENT

(1.) THIS is a suit for pre-emption based upon the rights given under the Berar Land Revenue Code of 1928. The plaintiff is an occupant of sub-division No. 23/1 in the survey No. 23. The defendant's vendor owned the other sub-division of the survey number, namely 23/2. Certain mango trees stand in the plaintiff's sub-division of the survey number. The defendant's vendor had a half interest in those trees. By a sale deed which forms ' the basis of this suit the defendant's vendor sold to him (i.e., defendant) his interest in sub-division No. 23/2 as also his half interest in the trees standing in the plaintiff's subdivision. The plaintiff's claim has been decreed in respect of the land, that is to say, survey No. 23/2, but has been dismissed in respect of the mango trees. The plaintiff appeals. The right to pre-empt is conferred by Section 183(1) of the Code. It states When an occupant in a survey number transfers his interest or any portion thereof, etc...the other occupants in the survey number shall have a right to pre-empt the interest transferred.

(2.) NOW , it is clear that the defendant is an occupant in Survey No. 23. It is argued that he is not because the survey number has ceased to exist by reason of the fact that it has sub-divisions. The definitions given of survey number and sub-division of survey number make it clear that simply because a survey number is sub-divided into parts the whole does not cease to exist. I am clear therefore that the defendant is an occupant in survey No. 23. Under Section 46 of the Code, trees are deemed; to be part of the land, on which they are situate, in the case of unalienated land, which is the kind of land we are dealing with here. If they are part of the land, then the defendant's vendor who had a half interest in those trees had an interest in the part of the land on which the trees stand. That land is a part of Survey No. 23. Therefore, the defendant's vendor had an interest in that survey number in so far as these trees are concerned. He sold that interest: he therefore sold a portion of his interest in Survey No. 23. Sale is one of the kinds of transfer which under the Code gives rise to a right of pre-emption. Therefore, the plaintiff had, in my opinion, a right to pre-empt the half share in the trees which was sold.

(3.) SECTION 54 of the Code, defines an occupant. It is a person who acquires the right to occupy land under Section 53, and Section 173 of the Code, states that for the purposes of chapter on pre-emption an occupant in a survey number means a person having the right of an occupant, that is to say, a person having a right to occupy land under Section 53. It is quite clear that a person cannot occupy mango tree, and Section 53 also makes it clear that there can be no occupant in respect of a tree. Consequently, unless the person selling is an occupant of a survey number, the mere fact that he has an interest in the trees would not give the plaintiff a right to pre-empt. That decision is therefore not in point.