BISHAN SINGH GAUR Vs. IPRSHERRED

JUDGEMENT

(1.) I confess I have felt some difficulty in deciding this appeal. The difficulty has been partly due to my being unacquainted with the system of land tenures in Kumaun Division and partly to the fact that this is the first pre-emption case that comes before me from that Division. The Agra Pre-emtion Act does not apply to the Kumaun Division and the incidents of the custom of pre-emption prevailing in that Division have to be gathered mainly, if not wholly, from a book by Mr. Stowell styled as "A Manual of the Land Tenures of the Kumaun Division." Even in this book, the alleged custom of preemption prevailing in Kumaun Division is not set forth in sufficient detail and the observations of the learned author on the point do not furnish an infallible guide in the decision of the appeal before me. Lastly the difficulty in deciding the appeal has been occasioned by the fact that it is impossible to ascertain with reasonable certainty the findings that the learned Judge of the lower Appellate Court intended to or did record on the points involved in the case. The suit giving rise to the present appeal was to pre-empt an alleged transaction of sale evidenced by a deed dated 10 June 1932, executed by Mr. C.T. Allen in favour of Mr. Sherred, respondent. The property sold was an orchardmeasuring 96 acres. This orchard is described in the revenue papers as Khabrar- thok estate and is assessed to a Government revenue of Rs. 73-9-7. The land was granted by the Local Government to Mr. Allen in the year 1914 and the orchard was planted by Mr. Allen on the same. The plaintiff is admittedly a resident co- sharer in village Satbunga and his case was that the Khabrarthok estate was a part of that village and as Mr. Sherred was not a co-sharer in the village he had a right to pre-empt the sale in his favour.

(2.) The suit was contested both by Mr. Allen and by Mr. Sherred on a variety of grounds. They denied that the Khabrar-thok estate was a part of village Satbhunga and alleged that Mr. Sherred was a co-sharer in village-Satbhunga and was also a co-sharer with Mr. Allen in the orchard in suit. They therefore maintained that the plaintiff had no right of pre-emption. They further contended that the transaction evidenced by the deed dated 10 June 1932, was really not one of sale. Lastly they denied the existence of a custom of pre-emption. Triatrial Court held that Mr. Sherred was not a co-sharer either in village Satbhunga or in. the Khabrar-thok, that the custom of preemption did prevail in the village and that the transfer in favour of Mr. Sherred washy means of sale. It however dismissed the plaintiff's suit on the finding that the-orchard in dispute did not form part of village Satbhunga, and that by the grant made by the Government Mr. Allen did not become a co-sharer in village Satbhunga. While dismissing the plaintiff's suit the trial Court observed that "the case is nothing but an attempt on plaintiff's part to secure a valuable property at a ridiculously low figure." On appeal by the plaintiff the lower Appellate Court affirmed the; decree of the trial Court.

(3.) It appears that in Sambat 1880 corresponding to 1882 A.D., Mr. Traill, the then Commissioner of Kumaun, fixed the boundaries of the villages in Kumaun. These boundaries are known as sal assi boundaries and are referred to at p. 168 of Mr. Stowell's book (1937 edition). It is stated, in the book that: In 1880 (Sambat) Mr. Traill carried out a great so-called "measurement" of the whole province and included all lands of -whatever description within the nominal boundaries of the villages, so that however far the forest stretched on any side of a village, the limits of that village extended through the forest until it met the boundary of some other village. There was no actual measurement of the forests and only an estimate of the cultivated blocks.... They were merely convenient divisions of the district, a "nominal allotment of waste," and conveyed no proprietary right over waste and forest land to the villagers, though in most cases they corresponded with the village customary sphere of grazing and timber rights especially in the more closely cultivated tracts.