DEB SINGH Vs. THAGU SAH

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit for pre-emption in respect of properties sold in Garhwal. The plaintiff is admittedly a resident co-sharer in the village in which the property is situated. The defendant certainly resides in the neighbouring village. Some-time ago he purchased a share in the village in question, but in the sale deed there was no mention of any transfer of a cow. shed or other building. His case has been that he possesses a cow. shed in the village in question where his cattle and servants and sometimes himself live. The learned District Judge is doubtful whether a cow-shed exists at all. In any case, he has come to the conclusion that the possession of a cow-shed in this village where his cattle and servants may live would not be a sufficient residence of the defendant. I agree with this view. A person cannot be said to be a resident co-sharer if he has got no residential house of his own where he ordinarily resides, but has got a mere cow-shed for keeping cattle and for servants to look after them. His ordinary residence being in another village, he must be deemed to be a resident of that village and not of the village where he has a cow shed. The next question is whether the plaintiff who is a resident co-sharer can have preference over the defendant who is a non-resident co-sharer. Mr. Stowell in his Manual of the Land Tenures of the Kumaun Division, in Chap. 2, Section (8) p. 51 (Edn. 1928) has noted: The first requisite, therefore, to entitle a man to claim preemption is that he should be a co-sharer, and a resident co-sharer, of the village.

(2.) HE has further noted "A non-resident co-sharer also has no right of pre- emption." This opinion is based on the Garhwal village memorandum as well as on the ruling in Gajadhar Juyal V/s. Jora, decided by the Commissioner in 1902. Further reliance was placed on an entry in the wajib-ul-arz of another village which has been taken to be a typical example. It is not necessary to take that into account, as Mr. Stowell's book has in the past been accepted as a good record of the existence of the custom mentioned. I accordingly dismiss this appeal with costs.