AHMADULLAH KHAN Vs. ZAR MOHAMMAD

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-emption. The subject-matter of the claim was a grove. In the sale-deed the land and the trees and everything appertaining to the grove are sold. The vendee contends that, although there is a custom of pre-emption between co-sharers, the subject-matter of the sale in the present suit cannot be considered as the hakiat or part of the hakiat of the vendor because the grove is not assessed for Government revenue, and that in any event when a plot of land has been sold, the ordinary right of pre-emption does, not arise. In our opinion it is a mistake to think that a right of pre-emption can never arise in the case of sale of a plot of land. If the plot of land is the share of the co- sharers or part of the share and a custom of pre-emption- prevails, then the persons who have a right of preemption are entitled to maintain the suit. The simplest case of this kind occurs in such mahals as those in which the co-sharers have separate fields representing their shares. No doubt it is possible that a vendor might occupy two positions in a mahal, viz, the position of a co-sharer and the position of a grove-holder. If he merely sold his rights as a grove-holder, the ordinary right of pre-emption between the co-sharers would not arise on the present case, however not only did the vendor purport to sell the land as well as the trees but we find that the grove was part of the vendor s khata which had a separate area and was separately assessed to revenue and owned solely by the vendor. Under these circumstances we consider that the decree of the Court below, so far as it allowed the pre-emption, was quite justified.

(2.) THE second ground of appeal is as to price. THE Court of first instance found that the price (Rs. 500) mentioned in the deed was fictitious and it further found that the real price was Rs. 230 after allowing Rs. 20 for certain trees which had been cut down by the vendee. THE lower Appellate Court has only allowed Rs. 75. THE learned Judge disbelieves the evidence of the plaintiffs witneses where they state that only Rs. 95 was the actual price paid. He also disbelieves the evidence of the defendant s witnesses where they state that the whole of Rs. 500 was paid. He then says that in the absence of any better evidence ho must accept the evidence of the two witnesses for the plaintiffs. This, it seems to us, was a very unfair way of dealing with the matter, particularly when he had the evidence of the patwari that the market value was about Rs. 265. THE learned Judge does not say that he disbelieves the evidence of the patwari and the Court of first instance believed him. If the Court disbelieved the evidence of the plaintiffs witnesses and could not accept the evidence of the defendant s witnesses it should have based its finding on what was the market value of the subject-matter of the sale. THE patwari allowed Rs. 35 for the trees cut down and deducts this from Rs. 265. We accordingly find that the proper price to be paid is Rs. 230 which is the amount found by the Court of first instance. We vary the decree of the Court below by substituting Rs. 230 for Rs. 75 as being the value of the property. In all other respects the appeal is dismissed. Under these circumstances we direct that all parties should bear their own costs of the appeal. We extend the time to two months from this date.