CHAUBEY MANGAN LAL Vs. CHAUBEY BRAHM DUTT

JUDGEMENT

(1.) This is an appeal by Chaubey Mangan Lal whose claim for pre-emption has been dismissed by the learned Additional Civil Judge of Agra. Defendant 2, Chaubey Gulzari Lal, sold certain zamindari property specified at the foot of the plaint to Chaubey Brahm Dutt, defendant 1, and the plaintiff Chaubey Mangan Lal alleged that he was a cosharer in mauza Chandarpur where the property sold was situate and that his name was recorded in the khewat. Defendant 1 was said to be a stranger. It is not necessary for the purposes of the present appeal to go into the other allegations of the plaintiff or to discuss the various pleas taken in the written statement excepting one, namely that the plaintiff was not a cosharer in mauza Chandarpur as required by the Agra Pre-emption Act and that at the most he could be called a petty proprietor of only particular plots. For that reason the defendant vendee alleged that the plaintiff was not entitled to maintain the suit. The Court below has upheld this contention of the defendant and has dismissed the plaintiff's suit. In appeal before us, it is contended that the view taken by the Court below is incorrect. Two documents are relevant for the decision of this issue. The first document is the wajib-ul-arz of the village prepared in 1285 Fasli and printed at p. 17 of our record, and the second one is the khewat for the same year which has not been printed but a typed copy of which has been supplied to us.

(2.) Before we discuss the evidentiary value of these two documents, it is necessary to refer to certain provisions of the Agra Preemption Act. There is no doubt that on the sale of a share of zamindari if any wajib-ul-arz prepared prior to the commencement of the Act records a custom, contract or declaration recognizing or declaring a right of pre-emption, then a right of pre-emption shall be deemed to exist and under Section 12 of the Act cosharers in the mahal in which the property is situate and cosharers in the village will have the right to pre- empt. Under Section 4, Clause (1) "cosharer" means any person, other than a petty proprietor, entitled as proprietor to any share or part in a mahal or village whether his name is or is not recorded in the register of proprietors, and under Section 4, Clause (7) "petty proprietor" means the proprietor of a specific plot of land in a mahal, who as such is not entitled to any interest in the joint lands of the mahal, or to take part in the administration of its affairs.

(3.) It is thus clear that every person who is entitled as proprietor to a share or part in a mahal or village will have the right to pre-empt unless he is only a petty proprietor and as such petty proprietor is not entitled to any interest in the joint lands of the mahal or to take part in the administration of its affairs, his proprietary right extending only over specific plots of land in the mahal. The question that we have got to decide is whether the plaintiff is a mere petty proprietor as held by the Court below within the meaning of Clause (7) of Section 4 or whether he is a cosharer within the meaning of Clause (1) of Section 4. Now we come to a discussion of the two documents mentioned in an earlier portion of our judgment. The wajib-ul-arz which is printed at page 17 of our record consists of four chapters. Ch. 1 relates to the nature of the mahal and property and customs. Ch. 2 deals with the rights of share-holders inter se on the basis of custom and agreement. Ch. 3 relates to the rights of under-proprietors and the fourth deals with the rights of tenants in general. It is clear that the under-proprietors are relegated to Ch. 3 and their rights are mentioned in a chapter of its own. At this stage we might mention that it is common ground that the plaintiff is the son of Genda Lal and is entered in the khewat against Serial No. 3 under the heading of resumed muafi-holders. His proprietary interest extends over 14 bighas 8 biswas of land with a Government revenue of Rs. 15-13-3.