DARIA Vs. HARKHIAL

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-emption. The village in question formerly consisted of several thoks, one of which was thok Jaroli. Thok Jaroli consisted of several pattis. The property in dispute was situate in patti Khera of Thok Jaroli. In this thok that plaintiff was a co-sharer. The Wajib-ul-arz of the village gave a right of preemption to five classes of pre-emptors. With the first two classes we are not concerned. The third class consists of snare-holders in a patti, the fourth, sharers in a thok, and the fifth share-holders in the village. In the year 1305 Falsi Thok Jaroli was by perfect partition divided into several mahals out of which is mahal Harkhial and Dalipa. By the new arrangement the property sought to be pre-empted and the property of the plaintiff fell in mahal Harkhial and Dalipa. The defendant-appellant is not a co-sharer in mahal Harkhial and Dalipa, but is the owner of mahal Chander Sen, one of the mahals of the old thok Jaroli. It thus appears that by the now arrangement pattis and thoks have been done away with and the old thok Jaroli has been divided into several new mahals. Both the lower Courts held that in view of the new arrangement the plaintiff had no preferential right of pre-emption over the defendant-appellant. On appeal the learned Judge of this Court, before whom the appeal was heard, came to the conclusion that the case was governed by the ruling in the case of Dalganjan Singh V/s. Kalka Singh 22 A. 1. We are unable to agree in the view taken by the learned Judge. It appears to us that when the pattis and thoks into which the village was divided were done away with the plaintiff could only claim pre-emption by virtue of his being a share-holder in the village. The defendant-vendee is also a share-holder in the village and the plaintiff has no preferential right over the defendant. If there had been a new wajib-ul-arz provision might have been made whereby preference would under the circumstances be given to the plaintiff, but in this case no new wajib-ul-arz was prepared. Therefore the rights of the parties are governed by the old wajib-ul-arz and in view of the fact that the old pattis and thoks have been done away with, we fail to see how the plaintiff has any preferential right of pre-emption over the defendant-vendee. For these reasons we allow the appeal, set aside the decree of the learned Judge of this Court and restore the decree of the lower appellate Court. We give the defendant appellant the costs of this appeal.