GOPAL SINGH Vs. GANGA PRASHAD PANDE

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-emption brought in respect of a sale made on the 23 of October, 1906, The vendee is an outsider to the village. The plaintiff owns a share in the village but not in the mahal in which the property in question is situate. He relies upon the wajib-ul-arz of 1289 Fasti, which provides that a co-sharer wishing to sell his share must sell it first to brothers who are also co-sharers, second to hissadars in the patti, third to the lambardar of the patti, fourth to the lambardar of the village, fifth to a co-sharer in the village. At the time when this wajib-ul-arz was prepared the village was an imperfect pattidari village. It consisted of pattis but no mahals and the whole co-parcenary body were jointly responsible for the payment of the revenue and a common bond existed between them. At the time of the preparation of the wajib-ul. arz a partition was in progress but it was completed subsequently. The wajih-ul-an was prepared in the course of revision of Settlement and not in the partition, proceedings. The plaintiff comes within the fifth category of pre-emptors mentioned in wajib-ul-arz and claims as such it is contended that after the partition of the village into two separate mahals, the plaintiff has ceased to be a co-sharer of the vendor and has, therefore, no right of pre-emption. We think this contention is correct. The case cannot be distinguished from the Fall Bench ruling in Dalganjan Singh V/s. Kalka Singh 22 A. 1. The terms of wajib-ul-arz in both the cases are very similar and the remarks made in the judgments in the Full Bench case apply with equal if not greater force to the circumstances of the present case. It was held in that case and in many other cases that in each suit for pre-emption the Court must construe the terms of the particular custom recorded in the wajib-ul- arz in which the claim, is based. The custom upon which the plaintiff relies is, as we interpret, a custom which requires that persons having a right of pre-emption must have the common bond of being co-sharers. After partition the plaintiff who is not a co-sharer in the same mahal with the vendor ceased to be a pre-emptor of any of the descriptions mentioned in the wajib-ul-arz of 1289 Fasli. The fact that at the time, when the wajib-ul -arz was prepared a partition was in progress is immaterial. The Court below has relied on the decision of this Bench in Janki V/s. Ram Partab 28 A. 280 : 2 A.L.J. 833 : A.W.N. (1906) 2. The circumstances of that case are distinguishable from those of the present. The wajib-ul-arz in that case was prepared at a time when the village had already been divided into mahals. So that when it provided that a share-holders in the village would have a right of pre-emption, it was clearly meant that the right would attach to persons who were not co-sharer in the same mahal. It is for that reason that it was held in that case that upon the terms of the particular wajib-ul-arz, which was referred to and relied upon, the plaintiff had a right of pre-emption. THIS circumstance, as we have observed above, do not exist in the present case. We find it impossible to distinguish this case from the case of Dalganjan Singh V/s. Kalka Singh 22 A. 1 which has never been departed from except perhaps in one case; but we need not refer to that case as its circumstances were apparently different. The result is that we allow the appeal, set aside the decrees of the Courts below and dismiss the plaintiff's suit with costs in all Courts including in this Court fees on the higher scale.