PARMESHRI Vs. BHAWANI PRASAD

JUDGEMENT

(1.) THIS was a suit for preemption based upon a Wajib-ul-arz dated the 2nd September, 1870, The clause relating to pre-emption divides the pre-emptors into three classes (1) hissadaran qaribi, (2) hissa-daran patti, (3) hissadaran deh. The property sold is situated in the patti No. 17. The pre-emptor and the vendor are co-sharers in patti No. 15. The pattis Nos. 15, 16 and 17, according to the finding of the learned Munsif are in patti Zorawar Singh. The vendee is a blood relation of the vendor and a co-sharer in the deh. The Court of first instance dismissed the claim holding that the plaintiff had no right of pre-emption superior to that of the defendant. According to the learned Munsif the expression "hissadar qaribi" means blood relation. The lower appellate Court reversed the decree of the learned Munsif and held that the expression "hissadar qaribi" meant a co-sharer who is nearer in space than others, i.e., a co-sharer in the same sub-division of the patti. The lower appellate Court remarks in its judgment as follows: The village Negpur Kalan consists of pattis and those pattis have further sub-divisions as appears from copies of Khewats on the record. The shares of co-sharers are given separate with their district area and revenue, and consequently in a divided village, nearness necessarily means nearness in space vide Bela Bibi V/s. Akbar Ali A.W.N. (1901) 183 : 24 A. 119 and Sital Prasad V/s. Amtul Bibi A.W.N. (1885) 185 at 186. Taking this view, the lower appellate Court did not record any finding as to whether the vendee was or was not a blood relation of the vendor. The defendant vendee has preferred a second appeal to this Court and it is argued by his learned advocate that the expression hissadar qaribi in the Wajib-ul-arz means hissadar who is a blood relation. The learned vakil for the respondent in answer to this says that the expression "hissadar qaribi" in those villages, which are divided into mahals, thoks and pattis, means a co-sharer in the sub-division. He relies, in support of this proposition, upon certain remarks made by Mr. Justice Chamier page 186 in Bela Bibi V/s. Akbar Ali A.W.N. (1901) 183 : 24 A. 119. He also relies upon Balzor Rai v. Madho Rai A.W.N. (1895) 78 and upon an unreported ruling in S.A. 460 of 1908 decided on the 7 of May 1909. The result of the contention of the learned vakil for the respondent would be that pre-emptors in that village would be divided into three classes, the first would be the co-sharers in the sub-division of a patti, the second would be the co-sharers in the patti and the third would be the co-sharers in the village. THIS would indicate that at the time of the framing of the Wajib-ul- arz the village was divided not only into pattis but the pattis were further divided into sub-pattis. It is, therefore, desirable to ascertain whether such was or was not the case, and it is also desirable to have a finding on the question whether the vendee is or is not a blood relation of the vendor. Therefore, I refer the above issues for trial under Order 41 Rule 25. The Court will be at liberty to take such additional evidence as the parties may adduce. Ten days will be allowed for objections on return of the findings.