DONGAR SINGH Vs. BHOPAT SINGH

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for pre-emption. No less than nine issues were framed by the Court below, but the suit has been dismissed on only one preliminary point, though the learned Judge thinks that point is covered by three issues, 1, 2 and 3. The solitary point on which the suit has been dismissed is that although the property sought to be pre-empted was situated in three thoks, at the time the sale-deed was executed, under an order of the revenue Court, the village was imperfectly partitioned into 20 pattis which took effect before the institution of the suit and in one of which only the entire property sold fell. The learned Judge has, on this ground, held that according to the present constitution of the village the plaintiffs cannot be regarded as co-sharers but will be deemed to be perfect strangers.

(2.) For this startling view, he has relied on the case of Daria V/s. Harkhial [1909] 31 All. 274. That was a case decided before the constitution of the pre-emption Bench, and was one in which the village had been divided by perfect partition into several mahals. Under Section 106, Land Revenue Act (U.P. Act 3 of 1901) in "imperfect partition" the several portions remain jointly responsible for the revenue assessed on the whole mahal. Similarly in Section 4, Sub-clause (4), mahal means any local area held under a separate engagement for the payment of the land revenue. It is, therefore, obvious that all the pattis taken together form one mahal and the proprietors of this mahal are co-sharers of each other and not perfect strangers. The wajib-ul-arz, if it records a custom, obviously gives a right to co-sharers in the other thoks, which means to co-sharers in the mahal as against strangers. The ground on which the case has been dismissed is, therefore, wholly untenable. As many issues have not been disposed of, we set aside the decree of the Court below and send back the case to the lower Court for disposal according to law.

(3.) The plaintiff will have his costs of this appeal including fees on the higher scale.