DIN DAYAL Vs. SHEO PRASAD

JUDGEMENT

(1.) This is a first appeal by Din Dayal, defendant 1, against a decree in favour of the plaintiff, Sheo Prasad for pre-emption. The sale in question was by defendants, Baghunath Prasad, and defendant 3, Bhagwat Prasad in favour of Din Dayal, of 8th December 1930 of the whole of mahal Safed in mauza Sadarpur Matlabpur with the exception of a specific plot No. 32. The plaint sets out that on 30 November 1930 there had been a fictitious deed of exchange by which this No. 32 area 1.9 acres had been exchanged by Raghunath Prasad and Bhagwat Prasad having been given to Din Dayal and in exchange Din Dayal had given them a plot of waste land of 166 square yards situate in muhalla Kasrol in the Moradabad city. The plaint alleged that the two documents were in fact one single transaction and that the deed of sale was fictitious and under the same no party acquired any right separately. The plaintiff set out that he himself was the owner of .16 acres of land known as Dera situate in 507/1 mahal Safed Tafazzul Ali Khan and that he was also the sole owner of mahal Sabz Syed Meharban Ali Khan along with his brother Jagannath Prasad, in the village in suit. In para. 10 of the plaint, setting out his right of pre-emption, the plaintiff stated that he was a co-sharer in mahal Safed and sir land. He therefore claimed to pre-empt the 20 biswas in mahal Safed Tafazzul Ali Khan which were transferred by defendants 2 and 3 to defendant 1.

(2.) The written statement of defendant 1 denied that the deed of exchange was a part of the transaction of sale and alternatively in para. 8 of the additional statement alleged that if the two transactions form part of one single transaction, then they would not amount to a sale at all and no suit for pre-emption would lie. In para. 7 it was alleged that the deed of exchange was a genuine deed of exchange and that after making the exchange defendants 2 and 3 got a pucca well, made for drinking purposes in the land which they had acquired in Moradabad city. The question of the genuineness or otherwise of the alleged exchange was a matter which the former bench, of which one of us was a member, considered, should be elucidated and accordingly a remand was made of an issue on the point to the trial Court. The trial Court has now carefully considered the matter on the admission of further evidence and has come to a finding that the exchange of 30 November 1930 was a genuine transaction. We may note that there is good evidence to show that a well was built in Moradabad city by defendants 2 and 3 on this area transferred by Din Dayal and the name of Bhagwat Prasad is inscribed on the well. These facts were the subject of a report by an amin and there is no doubt that the case for the defence has been made out on this point. The area was 166 square yards in the deed of exchange and a few days later in the sale deed in suit 100 square yards were re-transferred. The reason given is that it was found that 66 square yards were sufficient for the purpose of making a well.

(3.) We consider that the finding of the Court below was correct on that point. Now the case, however, does not seem to be advanced very far for defence on this finding. The particular portion transferred by the exchange to defendant 1 as set out on p. 67 is land No. 32 comprising 1.9 acres bearing a rent of Rs. 5-9-6 out of the land comprising 334.2 acres zamindari property with revenue, known as mahal Safed, 20 biswas, situate in mauza Sadarpur Matlabpur, entered as khata khewat No. 1. Now this is clearly a particular plot. The rent of Rs. 5-9-6 is not revenue but it is admitted that this is rent which the occupancy tenant paid to the owner of the plot. The deed of exchange does not provide that any land revenue is to be paid by defendant 1 taking this plot. The Revenue Courts have dealt with this matter in mutation by providing that the whole of 20 biswas shall be entered for defendant 1 and these entries in mutation were made long after and there was only an interval of eight days between the deed of exchange and the sale deed. We have been referred to a ruling of their Lordships of the Privy Council in Ramjimal V/s. Riaz-ud- din in which their Lordships set out on page 977 that: The sale deed in favour of the plaintiff makes it clear that he acquired only certain specific fields, the total area of which amounts to 38 bighas and 14 biswas, and the Courts in India are agreed that he had no interest in the joint lands of the mahal. The trial Court also found that he did not take part in the administration of the affairs of the mahal, but the learned Judges of the High Court observe that there is no evidence to show that he has not any right to take part in the administration of the affairs of the mahal. They themselves, however, point out that the burden of proving that he is a co-sharer and that he has a right to take part in the administration of the mahal undoubtedly lies on the plaintiff who comes to Court. There is not a scrap of evidence to discharge that onus, and the decision of the Court of first instance on this point must, therefore, be affirmed.