BAHAL SINGH Vs. MUBARIK-UN-NISSA

JUDGEMENT

(1.) The sole question for determination in this appeal turns upon the meaning to be assigned to the expression " shikmi" share-holders used in the wajib-ul-arz of village Kandhla in the Saharanpur judgeship. On the part of the appellant it is contended that the word " shikmi " denotes those who are more closely connected with the vendor in a thok and patti in which the property, the subject of the sale, is situate than proprietors in another patti of the same mahal who are not proprietors in such thole or patti. On the part of the respondents the contention is that the expression shikmi shareholders denotes share-holders born of the same shikam, that is, uterine brothers or blood relations. The property in dispute formed part of khewat Nos. 22 and 33, portion of a mahal of 15 biswas. The mahal is divided into seven pattis and the land in dispute is situate in patti Khail, thok Bhuria. It is admitted that the plaintiffs appellants are co-sharers in patti Khail, while the defendant Musammat Mubarik-un-nissa is a co-sharer in the mahal, but not in patti Khail. In the wajib-ul-arz of the village the persons in whose favour a right of pre-emption is given are classified under three heads:-- (1) Shikmi share-holders (shwkayan-ishikmi). (2) Share-holders descended from a common ancestor (shurka-yan-i- jaddi) and (3) Khewatdars in the mahal (khewatdaran-i-mahal).

(2.) The learned Subordinate Judge held that the plaintiffs had a preferential right of pre-emption and gave them a decree, but on appeal the learned District Judge reversed this decree, holding that neither the plaintiffs nor the defendants answered the description of shikmi share-holders, but came under the third clause as other khewatdars in the mahal, and that therefore the plaintiffs had no preferential right of pre-emption as against the defendants.

(3.) The word " shikmi " in connection with co-sharers in land is rarely met with and is a vague and indefinite term. We have been referred to two cases only in which the expression "shikmi share-holders" is to be found, and we know of no other. In the case of Jeymul V/s. Kesree Agra. F.B., 1866, p. 171 the construction of a wajib-ul-arz in which the expression " shikmi shurleayan " occurred was referred to a Full Bench. In the referring order it is stated that the expression " shilomi sharers " was said to have acquired the local meaning of sharers who are blood relations, when these words occur in administration papers in the Saharanpur district, and references is made to a judgment of the Principal Sadr Amin in which is a statement to the effect that the pleaders on both sides admitted that the phrase shikmi sharers expresses no distinct meaning, but that its local meaning is " a sharer who is a blood relation to another sharer." The case was referred to the Full Bench so that a definite rule of construction might be laid down. According to the head-note the Full Bench decided that the proper construction of the words " shikmi shurkayan " was that they gave a preference to the sharers in the thoks over those who were -merely sharers in the village. This head-note is altogether inaccurate, for we find on reference to the judgment that the Full Bench declined to decide what the meaning of the expression was or whether it had a special local meaning. They decided the case upon a later passage in the wajib-ul-arz, which gave to the share-holders in the same thole a preferential right of pre-emption over share-holders who were merely sharers in the village. This case therefore does not help the appellants.