SAKINA BEGAM Vs. HARNAM SINGH

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for pre-emption. The rights and interest of Balbir Singh in mahals called 10 biswa mahal and 7 biswa mahal were sold under a sale-deed dated 10 February 1925, to Dr. Masha Ullah Khan whose heirs are the appellants before us. Balbir Singh was recorded in the khewat as the superior proprietor (Malik Ala) in respect of the entire 20 biswas. The plaintiff Harnam Singh is recorded as an inferior proprietor (Malik adna) of a share out of the 20 biswas. The vendee denied the plaintiff's right to sue for pre- emption. The learned Subordinate Judge has held that the plaintiff is a cosharer and, therefore entitled to maintain the suit. He has not separately considered the question whether the interest transferred is pre-emptible.

(2.) The constitution of this village is very peculiar but there is no dispute about its characteristic features. The village is divided at least into two mahals called the 10 biswa mahal and the 7 biswa mahal. The counsel for the parties admit that the settlement for the payment of Government revenue has been made by the Government with the proprietors called the inferior proprietors among whom the plaintiff's name appears. But these inferior proprietors are bound to pay not only the Government revenue and the cesses but also a fixed sum of malikana dues amounting to Rs. 190 to the superior proprietor who is also described as the lambardar.

(3.) It is quite clear that Balbir Singh cannot be treated as a cosharer of the plaintiff Harnam Singh. The rights of Balbir Singh and Harnam Singh were quite different, distinct and independent. Balbir Singh is not a proprietor of any share or part in a mahal as referred to in Section 4. His rights whatever they may be extended to the entire 20 biswas. He has transferred his entire rights. The present plaintiff is in no sense a cosharer of Balbir Singh in the right so transferred by him.