DNYANDEO KISAN Vs. ABDUL WAHABKHAN

JUDGEMENT

(1.) THIS is a Letters Patent appeal filed by the plaintiff Kisan to set aside the decree, dated 22nd December 1943, passed by Bose J. in Second Appeal No. 636 of 1942, reversing the decree, dated 3lst August-1942, passed by the Court of the Second Additional District Judge, Akola, in civil Appeal No. 13A of 1942, and dismissing the claim of the plaintiff.

(2.) THE relevant facts are briefly these : The plaintiff Kisan (he died during the pendency of this appeal and appellants Nos. 1 (A) to 1 (D) were substituted as his legal representatives) was a co-occupant in the fields in suit and he filed this suit to pre-empt the sale dated 16th January 1941 effected by defendant 2 in respect of his share. It is admitted that on 17th June 1940 defendant 2 had served the notice through the Akola tahsildar, under Section 176, Berar Land Revenue Code, intimating the extent of the interest to be sold and the price at which he was willing to sell; (vide Ex. P-4). That notice was received by the plaintiff on the 24th idem. It is also admitted that he did not comply with the notice and deposit with the tahsildar the price specified therein for payment to the co-occupant, who had proposed to sell, under Section 176(2), Berar Land Revenue Code. Thereafter defendant 2 sold his share to defendant 1 by a registered sale deed dated 16th January 1941 not for the price of Rs. 825 as stated in the notice, Ex. P.4, but for a higher price, namely Rs. 895. It may be noted here that this sale was also not in favour of the person who was specifically mentioned as the vendee in the notice given by defendant 2 to the plaintiff.

(3.) THE learned advocate who appeared for the appellants has attacked Bose J.'s decision on three grounds, viz, (i) that the extent of interest stated in the notice is not the same as was transferred by the sale deed in suit ; (ii) that the consideration in the sale deed is less than the amount mentioned in the notice as the price at which defendant 2 was willing to sell, and (iii) that the sale in suit is in favour of a different person. It has been argued that, although the sale deed dated 16th January 1941 was executed by defendant 2 alone, it was consented to by defendants 8 and 4 and consequently the interest actually sold under the sale deed was some thing greater than what was proposed to be sold in the notice (EX. P.4). We do not think that there is any force in this contention, for the simple reason that it was defendant 2 alone who was a co-occupant and who sold the precise share of his own as was mentioned in the notice-nothing more, nothing less. The extent of interest actually sold under the sale deed is exactly the same, and it is quite obvious that the consent of the other persons was presumably taken by the purchaser only with a view to avoid any dispute in future. The mere fact that such persons accorded their consent to the sale by the real owner does not and cannot possibly mean that the interest conveyed by the vendor was in any way enlarged.