SHEIKH SAHIB ALI Vs. MUSAMMAT FATMA BIBI

JUDGEMENT

(1.) This appeal arises out of a pre-emption suit. The village of Arand prior to 1888 consisted of one mahal which was divided into thoks and pattis. On the 17 April 1888 partition proceedings were filed and the village was partitioned. A number of mahals were formed one of which, namely Mahal Muhammad Makki, is the subject-matter of this litigation. The plaintiff is not a co-sharer in this mahal but is a co-sharer in another mahal. The owners of Mahal. Muhammad Makki sold the entire mahal to the defendants and thereupon the suit was instituted. No new wajib-ul-arz was framed at the time of partition but the plaintiff relies upon the wajib-ul-arz which was prepared in the year 1883, which contains the following provision as to preemption, namely, "if any co-sharer in any patti wishes to transfer his property, then he shall do so first of all to his co-sharer in the khata, next to the proprietors of the putti, after that to the proprietors of the village, malikan deh." The contention on behalf of the plaintiff is that no new wajib-ul-arz having been framed upon the recent partition, the provisions of the old wajib-ul- arz must prevail and that the plaintiff being proprietor (malik) of part of the village is entitled to pre-empt.

(2.) The Court below acceded to this contention holding that the case was governed by the ruling in Janki V/s. Ram Partab Singh 28 A. 286; 2 A.L.J. 833; (1906) A.W.N. 2.

(3.) As has beers often laid down, the determination of an alleged right to preemption must depend upon the particular circumstances of each case and the evidence adduced in support of the pre-emptive right. In the present case the plaintiff relies upon the words in the wajib-ul-arz, malikan deh, as strongly supporting her claim. We have, therefore, to ascertain what meaning is to be attributed to this expression in the wajib-ul-arz in question. I think that the key to its meaning is to be found in the language used in the heading to Chapter II, in which Chapter is to be found the provision as to pre-emption. The heading of this Chapter is rights of co-sharers, hissadar deh, as among themselves based on custom or agreement." The words, co- sharers as among themselves, seem to bind the meaning of the word malikan deh to proprietors who are co-sharers with a vendor between whom and the vendor is a common bond. The plaintiff in this case is not such a co-sharer and, therefore, I think, cannot claim the benefit of the custom. The case is unlike that which was relied on by the Court below. Its facts also do not resemble those in the case of Sardar Singh V/s. Ijaz Husain Khan 28 A. 614; (1906) A.W.N. 134 in which upon partition a new wajib-ul-arz was prepared which was a verbatim copy of the old wajib-ul-arz. I would, therefore allow the appeal and dismiss the plaintiff's suit. The view which I take does not conflict with that expressed in Govind Ram V. Masiuhallah Khan 29 A. 295; 4 A.L.J. 137; (1907) A.W.N. 89 inasmuch as in that case there was nothing in the wajib-ul-arz relied upon to qualify the meaning of the expression, hissadar an deh, as used in it. Banerji. J.