RAM GHULAM Vs. RAM BHAJAN

JUDGEMENT

(1.) Three suits for pre-emption were filed in the trial Court by three different sets of plaintiffs, but they all related to a sale dated 4 June 1932 by Babu Ram in favour of Ram Bhajan. The property sold was three plots of land Nos. 989, 369 and 792. These three plots lay in different pattis and each of the three plaintiffs alleged that he was a co-sharer in one or other of these three pattis and sought to pre-empt that portion of the property which lay in his patti. The vendee was not a cosharer in the pattis, but was a cosharor in the mahal alone, and on this ground the plaintiffs in the three suits alleged that they were entitled to preference as against the vendee. The trial Court did not consolidate the suits but passed separate decrees in each suit, although the principal judgment was delivered in only one suit. By the judgment of the trial Court the suits were decreed and proper orders passed for the payment of proportionate amounts of consideration. On appeal the lower Appellate Court was of the opinion that the trial Court should have consolidated the suits under Section 18, Agra Pre-emption Act, and disposed of them by a single decree. In this view, it heard a single appeal against the decrees in all the three suits and came to the conclusion that the plaintiffs were not entitled to pre-empt.

(2.) A single appeal by the three plaintiffs has been filed in this Court and no objection has been taken by counsel for the respondents to this procedure. The first point that was taken by the defendants was that the suits by the plaintiffs offended the rule of partial pre-emption and the second point taken was that the sale was not a sale of any proprietary interest in land by a cosharer or a petty proprietor and therefore no suit for pre-emption lay. As is clear, from what we have said above, the trial Court overruled both of these objections, but the lower Appellate Court upheld the pleas taken in defence and dismissed the plaintiffs suit. In second appeal before us it is contended that the claims were not bad on account of the defect of partial preemption and that the sale was a sale of a proprietary interest by a petty proprietor and as such the view taken by the lower Appellate Court was wrong. The appeal in the first instance came before the learned Chief Justice (Sir S.M. Sulaiman) and he directed that the case be laid before a Bench of two Judges and that is how the case is before us. The learned Chief Justice was of the view that the judgment of the Court below could not be supported on the question of partial pre-emption, and we are also of the same opinion. The plaintiffs and the vendee and the vendor are all cosharers in the same mahal, but the three sets of plaintiffs are cosharers in the same pattis in which part of the property sold is situate and each set of plaintiffs claims preference as regards the share in his own patti over the defendant vendee who is a cosharer only in the mahal. The suits therefore cannot be dismissed on the ground of partial pre-emption. The plaintiffs had no right of pre-emption against the vendee in respect of the shares in pattis other than their own and they could not possibly sue for that portion of the property which did not lie in their own patti because in respect of that they were in the same position as the defendant vendee.

(3.) On the next contention taken by the defendants, the learned Chief Justice did not express any definite opinion. It is submitted on behalf of the plaintiffs appellants that the vendor was a petty proprietor and the property which he sold was a proprietary interest in land. It is conceded that the vendor is recorded only as a rent-free grantee, but it is said that as he fulfils the requirements of Section 186, Agra Tenancy Act, (Local Act III of 1926), as found by the trial Court he is a proprietor and the property sold by him is proprietary interest in land. It is true that the trial Court went into this question and came to the conclusion that the land had been held rent-free for 50 years immediately preceding the commencement of the Act by two successors in. interest to the original grantee, but the trial Court did not consider whether the provisions of Section 185 were applicable or not. This however is a minor point. The question that we have got to decide is whether, even when the conditions laid down in Section 186 are fulfilled by a rent-free grantee, the position of the rent-free grantee becomes Unit of a proprietor from the time that he fulfils the conditions or from the time when his suit in respect thereof has been brought under the provisions of Section 192, Tenancy Act, and a declaration made. Certain cases wore cited before us, namely Nannhu V/s. Thakurji Maharaj (1918) 5 A.I.R. All. 23, Gobind Rai V/s. Banwari Lal (1920) 7 A.I.R. All. 163 and Sham Das V/s. Bahadur Singh (1921) 8 A.I.R. All. 195 but the consideration of these cases makes it clear that they have little bearing on the point in issue.