GOBIND RAM Vs. MASIH ULLAH KHAN

JUDGEMENT

(1.) The question involved in this appeal is concerned with the effect upon a custom of preemption prevailing in a village of a perfect partition of the village. In the village of Kiyampur Bheria, situate in the district of Etah, the following right of pre-emption arising by custom prevailed was recorded in the wajib-ul-arz, namely: "If any share-holder wishes to transfer his share by mortgage or sale, he shall do so first to the co-sharers of the village, and if any stranger causes the price of the share to be entered in the document in excess of the real price in order to deprive the co-sharers of the village of their right, the proper price shall be determined by arbitration, or by the officer for the time being." The village at the time of this wajib-ul-arz consisted of one undivided mahal, but it was, before the sale which has given rise to this litigation, divided by perfect partition into three mahals. The plaintiff Gobind Ram is the owner of 5 biswas of one of these mahals, and the share which is the subject matter of the suit is the remaining 5 biswas of that mahal, which belonged to the defendant Lachmi Narain. The vendees are Masi- ullah Khan and Zamir-ul-Hasan Khan, who purchased his share from Lachmi Narain. No new wajib-ul-arzes were framed at the time of partition. The learned Subordinate Judge, wrongly, we think, held that the village was divided into four mahals, and that neither the plaintiff nor the vendees were co-sharers in the mahal which was the subject matter of the sale, and that therefore, the plaintiff and the defendant vendees stood on the same footing as regards pre-emption, and on this ground he dismissed the plaintiff's suit.

(2.) It appears to us clear from the khewat that the village was divided into three mahals only, namely, mahal Rafat Khan, consisting of 5 biswas, mahal Masih-ullah Khan, consisting of 6 biswas, and mahal Chainsukh of 10 biswas. This appears from the closing khewats for the years 1302 and 1305 fasli which have been proved. The mistake of the learned Subordinate Judge arose from the fact that in the khewat of the 10 biswas mahal Hafiz Muhammad Rafat Khan is described as the mortgagee of the share consisting of 5 biswas of Lachmi Narain, while Musammat Ratan Kunwar is described as the owner of the remaining 5 biswas. This fact by no means establishes that the mahal of 10 biswas formed two mahals. The learned advocate for the respondents admitted this, and was not able to support the view of the Court below. On the ground therefore on which the Court below dismissed the plaintiff's claim the decree cannot be supported. But the learned advocate for the respondent contended that as the Vendees were co- sharers in the village before the partition, they have the same pre-emptive rights in respect of every part of the village as the plaintiffs.

(3.) This raises the important question what is the effect of the perfect partition of a village upon a right existing by custom under which each co-sharer in the village was entitled to pre-empt the sale to a stranger of any portion of the village. Mr. Kedar Nath on behalf of the appellant contended that in a case such as the present, upon perfect partition of a village into mahals, only the co-sharers in the mahal, portion of which is sold to a stranger, can pre-empt the sale, and that co- sharers in other mahals have no right of pre-emption whatever.