RIAZUDDIN Vs. MTPHULA DEVI

JUDGEMENT

(1.) The facts are set forth in the order of reference. The main question to be decided is whether when an existing mahal contains portions of earlier mahals the wajibularzes of some of which contain entries recording a right of pre-emption and of the others do not, a right can be presumed to exist in respect of the whole of the existing mahal or in respect of only that portion of it which has come out of the original mahals containing such a record or whether a right has entirely ceased to exist.

(2.) Unfortunately there is no section in the Act expressly referring to the case of union of mahals. The answer to the question referred has to be given on an examination of the language of the sections as they stand.

(3.) Section 5 provides that a right of pre-emption shall be deemed to exist only in mahals in respect of which any wajibularz prepared prior to the Act records a custom, contract or declaration whatever its extent or in whatever form it may be expressed. Sub-Clause 6 provides that where such a right is recorded in respect of any village or mahal, and such village 6r mahal has been partitioned, a right shall be deemed to exist in all the portions into which such village or mahal has been divided; It seems to me that the object of Section 5 is to lay down a rule to determine whether a right of pre-emption exists, in an existing mahal or village. Once such a right is presumed to exist the question as to its nature and extent is not to be determined by Section 5 at all but we have to look to other sections like Secs.11 and 12 for that purpose, which lay down the statutory right of pre- emption.