BAJRANGI LAL Vs. SHAHARYAR KHAN

JUDGEMENT

(1.) This is a defendants appeal arising out of a pre-emption suit filed by two persons named Shaharyar Khan and Rahman Khan in respect of a sale deed dated 9 November 1935. The sale deed was executed by defendants second party in favour of Munshi Bajrangi Lal, defendant 1 in the suit. By the deed, the following three villages in taluka Bara were transferred to the vendee: (1) the entire 16 anna village Bara, (2) the entire 16 anna village Firozpur, being one of dakhli villages to taluqa Bara; and (3) the entire 16 anna of mahal Munshi Raja Madho Lal, village Rohni being one of the dakhli villages of taluqa Bara.

(2.) The suit giving rise to the present appeal was for pre-emption of the third village mentioned above. The entire sale consideration was Rs. 1,40,000 and it was found by the Court below that the proportionate price of village Rohni was Rs. 5250. There is no dispute in the present appeal about the proportionate price attributable to village Rohni. The plaintiffs suit was based on the allegation that they were cosharers in village Rohni and, as such, had a preferential right of pre- emption against the vendee who was admittedly a stranger to the village. The vendee contested the suit mainly on the allegation that the plaintiff's were mere petty proprietors and were not cosharers in village Rohni. The Court below accepted the contention of the plaintiffs on the point and decreed their claim conditional on the payment of Rs. 5250 by them. Out of this amount, for reasons which it is unnecessary to state, the Court below directed the plaintiffs to pay Rs. 4539 to the vendee within four months and the balance of Rs. 711 was to be paid by the plaintiffs to the creditors of the vendor. No period was fixed by the Court below for the payment of this amount of Rs. 711. Being dissatisfied with the decree passed by the Court below Munshi Bajrangi Lal filed an appeal in this Court. He died during the pendency of the appeal and his widow and sons were brought on the record as his legal representatives.

(3.) The sole question that arises for consideration in the present appeal is whether or not the plaintiffs are cosharers in village Rohni. In order to decide this question, it is necessary to briefly state the constitution of taluqa Bara and in particular of village Rohni. Taluqa Bara originally consisted of twenty-four villages but later only seventeen villages were included within the ambit of that taluqa and one of these villages was village Rohni. The whole taluqa was in one mahal called mahal Bara. The taluqa was permanently settled in or about the year 1709. In village Rohni there was an area of 44 bighas 12 biswas of land which was mentioned in terij goshwara of village Rohni for the year 1840 as "muafi land of Nawab Ali Azam Khan." This area consisted of specified plots of land. Though the taluqa was settled for a lump sum in the permanent settlement, the muafi of Ali Azam Khan was not settled to revenues. About the year 1840, the taluqa was sold and purchased by one Abdulla, and it is common ground that the muafi of Nawab Ali Azam Khan was exempt from the operation of the sale. In the revision of settlement that took place in the district of Ghazipur in the year 1840, proceedings were taken for the assessment of revenue on the muafi land of Nawab Ali Azam Khan, and it appears from a rubkar of the Settlement Officer dated 7 January 1842 that this muafi land was assessed to a revenue of Rs. 30 and 5 annas was assessed on account of road-cess. The concluding portion of the order contained in the rubkar runs as follows: The settlement of this land be made as zamindari with the first party after obtaining an application for admission of jama and an agreement for payment of revenue and village expenses and for responsibility according to the old rules, subject to confirmation by the members of the Board of Revenue.