(SAHU) RAMJIMAL Vs. RIAZ-UD-DIN

JUDGEMENT

(1.) This consolidated appeal arises out of two suits for pre-emption in respect of the sales of two agricultural holdings situate in Mahal Zard of the Village Babaina in the Agra Province of India. The trial Judge dismissed both the suits, but the High Court on appeal granted decrees for pre-emption, on payment of certain sums of money which are no longer in dispute. The vendees have each preferred an appeal to His Majesty in Council, and their appeals, involving as they do, the same points for determination, have been consolidated into one appeal. During the pendency of the appeal the successful pre-emptor sold, on 27 May 1932, the lands, in respect of which he had obtained decrees, to one Shyam Lal who, as alleged by the vendees in the trial Court, had instigated the plaintiff to bring the suits and financed the litigation, in order to get the property ultimately from him. After making the transfer to Shyam Lal, the pre-emptor entered into a compromise with the vendees, by which he abandoned his alleged right of pre-emption, and agreed to the restoration of the decrees of the Court of first instance, which had dismissed his suits. This compromise cannot however affect the title which had already vested in Shyam Lal.

(2.) The contesting parties before their Lordships are therefore the vendees who are the appellants, and the sons of Shyam Lal, who, after the death of their father, have been impleaded as respondents. Before discussing the questions arising in the appeal, their Lordships consider it necessary to give a brief history of the Mahal Zard which comprises the lands in dispute. The village Babaina in 1874 consisted of four mahals called Mahal Nadir Khan, Mahal Niazullah Khan, Mahal Bibi Begum and Mahal Bhikari Das. In respect of each of these mahals a wajibularz was prepared during the period, 1874 to 1877. While the wajibularz of Mahal Nadir Khan recorded that there was no right of pre-emption in that mahal, the wajibularz of Mahal Bibi Begum contained an entry in favour of pre-emption, and so did the wajibularz of Mahal Bhikari Das. In respect of Mahal Niazullah Khan, the wajibularz prepared in 1874 contained a declaration in favour of pre-emption, but the later wajibularz prepared in 1877 recorded that there was no right of pre-emption. It is however common ground that the former wajib-ul-arz must prevail, vide explanation to sub. S.2, S.5, Agra Pre-emption Act 11 of 1922, which section will be discussed hereinafter.

(3.) In 1898 one Qadir Khan became the owner of two mahals, viz. Mahal Nadir Khan and Mahal Niaz-ullah Khan, and also of a new mahal called Surkh Bibi Begum, which was one of the two mahals which were formed on the partition of the original Mahal Bibi Begum. He there upon applied for the consolidation of these three mahals into one mahal, and his application was granted and the consolidated mahal was called Mahal Qadir Khan Surkh. After the death of Qadir Khan, his mahal was divided in 1924 into three mahals, viz. (1) Mahal Asmani, consisting of the land which two brothers, Rafi-ud-din and Nizam-ud-din, had purchased from Qadir Khan in 1920; (2) Mahal Sabz, which became the property of Qadir Khan's widow; and (3) Mahal Zard, which was owned by his nephews Mustajib-ud-din and Zahur Husain. On 20th March 1925, Mustajib-ud-din sold his one-half share in Mahal Zard to Sahu Ramji Mal. Subsequently, the other co-sharer, Zahur Husain, executed, in July 1925, a deed of sale in respect of his moiety in favour of Phula Devi. On 5 January 1926, Riaz-ud-din brought two suits for the pre-emption of these lands, and based his right of pre-emption on the ground that he was a co-sharer in Mahal Zard. His claim was rejected by the trial Judge, but has been allowed by the High Court.