MUSHTAQ ALI BEG Vs. JWALA SHANKAR SAHAI

JUDGEMENT

(1.) Second appeal No. 112 of 1927 and Second appeal No. 615 of 1927 are defendants appeals arising out of two pre-emption suits in respect of the same sale deed dated 7 July 1925, relating to certain plots of resumed, lands in khewat Rai Naterpal Singh, Kasha Jalesar. It is admitted that some of the plots are situated within the municipal limits and others are outside those limits. These plots are in three khewats, and in the revenue papers are shown under the heading haqiat mutafarriqa (miscellaneous property), and are distinct from khewat 1 which represents the entire 20 biswas and is shown as the khalsa, share. The learned Additional District Judge has found that the said khewats stand by themselves, and the owners thereof are owners of specific plots, and have no concern with the administration of the village There is no doubt whatever that they must be, termed as petty proprietors as defined in the Pre-emption Act,

(2.) The position than is that neither the plaintiffs nor the vendors nor the defendant vendees wore cosharers in the 20 biswas khalsa land. They all are petty proprietors who own specific plots of lands in the miscellaneous khewats. A reference to khewat 61 shows that the plaintiffs, the vendors and the vendees are all owners of specific plots in this khewat and stand on the same footing. The same can be said as regards khewat 35. No copy of khewat 126 is on the record, but the statement of the defendants vakil is to the effect that the plaintiffs are co- sharers with the vendors in that khewat, whereas the defendants are co-sharers in another khewat 20. It is, however, an admitted fact that neither the plaintiffs nor the defendants are coparceners in the same specific plots which have been sold by the vendors.

(3.) Taking the case of the plots which are situated within the municipal limits, it is quite clear from Section 1, Sub-clause (3) of the Act that the new Act does not apply to any area within the limits of any municipality. The case so far as these plots are concerned is therefore governed by a local custom, provided it is proved to exist. The plaintiffs rely upon a wajibularz of the year 1283 Fasli, which does record a custom of preemption, and there is no evidence to the contrary. It may therefore be presumed to be a correct record of custom. The language of the wajibularz is as follows: If any co-sharer (hissadar) or owner of resumed land (malik munzabta) wants to transfer his property by means of sale or mortgage he should sell it first to his real brothers and nephews and then to his cousins who are partners in the property (sharik haqiat) then cosharers of the patti (hissadar digar patti).