PILURAM Vs. MAHADEO

JUDGEMENT

(1.) FINDLAY , O.J.C. 1. The plaintiff-appellant Piluram is an eight-anna share-holder and lambardar of Mauza Pachkhedi (Nagpur). He sued the defendant-respondent Mahadeo for possession of absolute occupancy field No. 11 in that village. His case was that he was entitled to possession under a deed of surrender, dated 14th July 1922, executed by the tenant Jhibal in his favour. There was, moreover, in existence a previous sale deed in favour of the plaintiff's sons benami on his account, dated 7th February 1922. The defendant-respondent Mahadeo's case was that he had acquired the field from Jhibal, the tenant, by a sale-deed, dated 2nd May 1917, and that previously thereto Jhibal had given the requisite notice to the plaintiff on 23rd May 1916 with reference to Section 41 (2) of the Tenancy Act of 1898. The plaintiff admitted having received this notice, and it is further clear that he sent a reply thereto declaring his intention of acquiring the field himself after fixation of the value by the revenue officer. The said reply (Ex. D-2) also contained a definite statement that he had applied to the Collector thereanent. It is admitted now that this application was never made by the plaintiff.

(2.) THE Munsif held that the notice given by Jhibal to the plaintiff on 23rd May 1916, was a valid notice; that the mere fact of the plaintiff sending the reply he did to the notice, without taking effective steps to have the value of the field fixed, was no bar to Jhibal's transfer in favour of the defendant and that the latter had duly acquired the field by purchase from Jhibal under the sale-deed, dated 2nd May 1917. The plaintiff's suit was accordingly dismissed, and the appeal to the District Judge by the plaintiff has also failed.

(3.) FOR my own part I can see not the slightest reason for differing from the view which was taken by Ismay, J.C., in Bharatsingh v. Dhansingh1901.14 C.P.L.R. 162: There it was remarked as follows: Section 41 of the Tenancy Act is not very happily worded but it appears to contemplate that within the period of one month from the receipt of notice the landlord must intimate to the tenant his desire to purchase the absolute occupancy right. If the price cannot be amicably settled the landlord must apply to a revenue officer and have the value fixed. If the tenant is still recusant he must then bring a regular suit within the period prescribed by law. If the holding has been already sold the suit would be a suit to enforce a right of pre-emption.