PHOOL CHAND Vs. RAM NATH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption of a property situated in the district of Bundelkhand, which was sold on the 22nd December 1923. The vendor was a member of an agricultural tribe and so were the vendees, but the vendees were not cosharers in the village at all. The pre-emptors, on the other hand, are not members of the same agricultural tribe as the vendor, but are co-sharers not only in the mahal but in the very khata in which the share sold is situated. Before bringing their suit for pre-emption the plaintiffs did obtain the sanction of the Collector under the Bundelkhand Alienation of Land Act, Section 16 (A), as amended by Act 4 of 1915. The plaintiffs based their claim mainly on the custom recorded in the wajib-ul-arz of the village. The defendants contested the suit on the ground that the plaintiffs had no right to maintain the suit and that they had no preferential right as against them. The trial Court came to the conclusion that although "purchase," in view of the pronouncement of this Court in the case of Suraj Bhan V/s. Somwarpuri [1915] 37 All. 662, did not include "pre- emption," nevertheless "pre-emption" did include "purchase." It, therefore, came to the conclusion that the plaintiffs, having obtained the sanction of the Collector to pre-empt this property, were persons who were entitled to purchase it under the Bundelkhand Alienation of Land Act.

(2.) The learned District Judge has taken a contrary view. In his opinion the right of pre-emption is entirely distinct from the right of purchase, and is a mere right of substitution. He is also of opinion that the reference in Section 7, Agra Pre- emption Act, to the Bundelkhand Alienation of Land Act, 1903, does not necessarily imply a reference to that Act as amended in 1915. He is further of opinion that by implication Section 16 (A), Bundelkhand Alienation of Land Act, must be deemed to have been repealed by Section 7, Agra Pre-emption Act, although the said provision is not mentioned in the schedule of repealed Acts.

(3.) In my opinion there are two questions which have to be considered separately. The first is whether the Agra Pre-emption Act does confer a right on the present plaintiffs to maintain the suit and the second is whether, if it does not, it takes away any right which they might have had independently of it.