CHARITER DUSADH Vs. BHAGWATI PANDEY

JUDGEMENT

(1.) This second appeal is by the defendants in a suit for pre-emption. This suit was dismissed by the Court which tried it, but it was decreed by the District Judge of Sarah on an appeal by the plaintiff. Three plots of land described in the Record- of-Rights as rent free birt brahmotar were sold by defendant 2 to defendant 1. Adjoining these three plots are three other plots of the same description belonging to the plaintiff. It appears that the six plots were all once Comprised in a birt acquired long ago by an ancestor of the plaintiff and defendant 2. It Was found by the first Court that the plaintiff had been aware of negotiations for the sale of the three plots of defendant 2 and that before they were sold to defendant 1 he had already declined to purchase them himself. The lower Court of appeal however found that the plaintiff did not bear of the sale of the land to defendant 1 until about a year later and held that the other considerations were immaterial as the plaintiff's right of pre-emption could be exercised only when the sale was complete. It has also been found by the learned District Judge that the ceremonies required for pre-emption were duly performed by the plaintiff.

(2.) It is contended on behalf of the appellants that the plaintiff's suit ought to have been dismissed because in the first place a birtdar is hot the owner of land, and therefore has no right to pre-empt; and, secondly, because even if the plaintiff possessed that light he waived it when he failed to avail himself of the opportunity given to him by defendant 2 to buy the land. The first of these contentions prevailed in the trial Court, but it was not accepted by the learned District Judge. The argument is that a birtdar is not the owner of the land because he is not the proprietor of it according to the definition of the term proprietor in Section 3(2), Ben. Ten. Act, and that not being a proprietor the interest he has in the land must be of a subordinate character; in fact that of the tenant which is what he is shown to be in the Record-of-Rights. It is contended that being a mere tenant he cannot have the right he claims even if the tenancy is permanent, heritable and transferable.

(3.) The learned advocate referred to the cases of Mohammad Jamil V/s. Khub Lal Raut 1921 Pat 164, Dhirakshan Singh V/s. Triloki Prasad Singh 1923 Pat 217 and Mt. Bibi Saleha V/s. Haji Amiruddin 1929 Pat 214, in which it was held that a mukarraridar has no right of pre-emption. As to that there can be no doubt. In the words of Sultan Ahmad, J., in the first of the cases cited: It is Well established on the text as well as on the case law that the pre- emptor must have the milkiat or ownership in the property on account of which he claims the right of pre-emption.