BABU GOPI KISHUN Vs. BABU ISRI PRASAD

JUDGEMENT

(1.) THIS was a suit for pre-emption. The wajib-ul-arz which applied to the village before partition gave a right of preemption first to the hissadar karibi, then to hissadar thok and then to hissadaran of other thoks. At the time of the wajib-ul- arz the village was divided into two thoks. The village has since been partitioned into six mahals by a perfect partition. One mahal has been sold. The plaintiffs would have been co-sharers in one of the thoks if partition had never taken place. The defendant vendor is a stranger. The plaintiffs are now co-sharers in one of the six mahals into which the village was divided, but they are not co-sharers in the mahal which is the subject of the sale. The Court of First Instance decreed the plaintiffs claim. The lower Appellate Court dismissed the suit. The appellants rely on the case of Janki and others V/s. Ram Partap Singh 28 A. 286. In that case there had also been a partition, but the wajib-ul-arz gave a right of pre-emption, first to brothers and nephews; then to cousins who were co-sharers then to co-sharers in the patti and lastly to co-sharers in the village. It was held that even after partition a share-holder in the village had a right of pre-emption. The plaintiffs in that case came within the very words of the wajib-ul-arz. He was still a co-sharer of the village. The Court purported to follow the decision in the Full Bench case of Dalganjan Singh V/s. Kalka Singh 22 A. 1 (F.B.). At page 9 in this last mentioned case the following passage occurs: "If the custom recorded is one by which the right of pre-emption is confined to co-sharers of the then existing mahal, then it appears to me that it can no more exist in favour of others after the mahal and that particular co-parcenary body have been destroyed by perfect partition than any other custom can continue after the class, among which it has always prevailed, has perished. On the other hand, it is possible to imagine a custom of pre-emption which does not depend upon the continued existence of the undivided mahal and its co-parcenary body. A custom in favour of the brothers, or other near relatives of the vendor, might be an instance ". In the present case the plaintiffs do not come within the words of the wajib-ul-arz. They are no longer co- sharers in any thok in the mahal. They are not oven co-sharers in the mahal. The question of the joint liability for Government revenue as constituting a reason for the prevalence of a right of preemption cannot be omitted from consideration. On full consideration of the circumstances of this particular case I am of opinion that the decision of the Court below was correct. I dismiss the appeal with costs.