MAHADEO VYANKATI Vs. ABBASBHAI HASANALI

JUDGEMENT

(1.) THIS miscellaneous second appeal arises out of Civil Suit No. 357-A of 1944 instituted by respondents 1 to 8 with which was consolidated the appellant's Civil Suit No. 856-A of 1944. Boih suittwesre for the enforcement of a right of pre-emption under the Berar Land Revenue Code arising on account of a sale of 2.20 acres out of the sub-division 44/1 by Annapurnabai under the safe, deed dated 12.7-1943 for Rs. 300.

(2.) THE facts which need be mentioned are these. Survey No. 44 of mauza Pardi in Taluq and District Amraoti is divided into two subdivisions viz. 14/1 and 44/2. Mt. Annapurnabai was an occupant in sub-division No. 44/1 owning 2.20 acres, a part of the sub-division, while the appellant and his brother, Awadhoot own 3.15 acres in the same sub-division. Hasanali, father of respondents 1 to 3, owned 2.29 acres in the sob-division No. 44/2 and the same is inherited by respondents 1 to 3 under the Mahomedan law as co-heirs, each of them having 1/3rd share of that area which is cultivated jointly i.e., the area is not divided by metes and bounds. Respondents 1 to 8, on the one hand and the appellant on the other claimed a preferential right of pre-emption; respondents based their claim on the ground that they have jointly larger interest in the survey number while the appellant based his claim on grounds, firstly that he is an occupant in the sub-division 44/1 itself and secondly that his interest in the survey number is larger than any one of the plaintiffs. The Courts below held that the respondents have a preferential right to pre-empt. Civil Suit No. 857-A of 1944 was decreed by the first Court and that decree is maintained by the first appellate Court.

(3.) I am surprised to find that the Courts below have missed a point which, to my mind, is obvious, in determining priority under Section 179, Berar Land Revenue Code. According to Clause (a) of Section 179, the occupant who bus the largest interest in the sub-division, a portion of which is being transferred, has priority in the absence of any occupant in that sub-division who is related to the occupant transferring his or her share. It is not alleged that any relation of Annapurnabai is an occupant in sub-division No. 44/l and therefore obviously the appellant who is an occupant in that sub-division has a right to pre-empt. In fact, no question of priority arista in the case between the appellant and respondents 1 to 8 as the latter are not the occupants in the sub-division though they are occupants in the survey number. Clause (b) of Section 179, Berar Land Revenue Code comes for consideration only when no occupant in the sub division wishes to exercise the right of pre-emption. Thus, the appellant, an occupant in the sub division, has: decidedly a superior right of pre-emption and it is only if he fails to pre-empt, that respondents 1 to 3 have the right of pre-emption.