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Jiwan Ram Vs. Tondi Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1912)ILR34All13
AppellantJiwan Ram
RespondentTondi Singh
Excerpt:
.....in respect of the property situate in a different mahal and the full bench case of dalganjan singh v. it has been .expressly laid down in the full bench case of dalganjan singh that, where on the perfect partition of a mahal under the north-western provinces land revenue act, 1873, no new wajib-ul-arz has been framed for any of the new mahals, the question whether or how far a contract or a custom of pre-emption recorded in the wajib-ul-arz of the undivided mahal is still in force, or who is entitled to claim the benefit of it, is not capable of any absolute or invariable answer. it is admitted in dalganjan singh's case that persons other than co-sharers in an undivided mahal can have the right of pre-emption after a perfect partition, and that being the case to be a co-sharer in an..........i would therefore dismiss the appeal with costs.kabamat husain, j.3. certain property in the village dharera was sold and a suit for pre-emption on the basis of the wajib-ul-arz of 1272 fasli brought. the terms of the wajib-ul-arz are:agar kisi hissadar ko haqiyat apni bai wa rehan aur murtahin ko rehan dar rehan karna ho to bawaqt intiqal ke lazim hoga ki pahle apna hissadar karib ko aur darsurat inkar uske dusre hissadar deh ko khabar dekar baqimat wajib bai wa rehan kare. 4. [if any hissadar (sharer) has to sell or mortgage his haqiyat (interest) and if any mortgagee has to sub-mortgage it, he at the time of the transfer must give information first to his near hissadar and in case of his refusal (to buy) to other hissadar deh (sharer in the village) and then sell or mortgage it.....
Judgment:

George Knox, J.

1. I would dismiss this appeal. It arises out of a suit for pre-emption based upon custom as contained in the wajib-ul-arz. The wajib-ul-arz under which the right is claimed is a wajib-ul-arz prepared under and in accordance with the provisions of Regulation VII of 1822. According to the Regulation that wajib-ul-arz is primd facie evidence of the custom recorded in it unless and until it has been formally altered. It shall be shown by the result of a full investigation in a regular suit that the proceeding or record of the Collector was erroneous or incomplete. No evidence has been given by the defendant. I have therefore, to see what is the true construction to be placed upon its language. The terms of it will be found fully set out at page 282, I.L.R., volume 32. As I read them they record a custom whereby a person holding a share in the deh of Dharera has a right of pre-emption over and above a stranger. This is what I understand the villagers of Dharera intended and what they-understood and what the Settlement Officer found to be the custom. The stranger was to be kept out so long as any one who held any part or lot in the deh was prepared to pre-empt.

2. I would therefore dismiss the appeal with costs.

Kabamat Husain, J.

3. Certain property in the village Dharera was sold and a suit for pre-emption on the basis of the wajib-ul-arz of 1272 Fasli brought. The terms of the wajib-ul-arz are:

Agar kisi hissadar ko haqiyat apni bai wa rehan aur murtahin ko rehan dar rehan karna ho to bawaqt intiqal ke lazim hoga ki pahle apna hissadar karib ko aur darsurat inkar uske dusre hissadar deh ko khabar dekar baqimat wajib bai wa rehan kare.

4. [If any hissadar (sharer) has to sell or mortgage his haqiyat (interest) and if any mortgagee has to sub-mortgage it, he at the time of the transfer must give information first to his near hissadar and in case of his refusal (to buy) to other hissadar deh (sharer in the village) and then sell or mortgage it (to others) for a proper price.]

5. The village afterwards was divided into several mahals for whioh no new wajib-ul-arz was framed. The property sold was situate in one mahal and the pre-emptor had a share in another mahal. A single Judge of this Court held that a perfect partition ' put an end to the right of pre-emption in respect of the property situate in a different mahal and the Full Bench case of Dalganjan Singh v. Kalka Singh (1899) I.L.R. 22 All. I applied. He therefore dismissed the pre-emptor's claim. On appeal, the learned Judges who heard the appeal took different views. Stanley, C.J., held that the plaintiff was entitled to pre-empt notwithstanding the partition, and that the words hissadar deh, as used in this wajib-ul arz, meant a sharer in the village. Banerji, J., came to the conclusion that the plaintiff could not pre-empt after the partition of the village, as, although he was a sharer in the village, he was not a co-sharer of the vendor, and that the words hissadar deh, as used in the wajib-ul-arz meant a co-sharer of the undivided village for which the wajib-ul-arz had been prepared. See Dori v. Jiwan Ram (1910) I.L.R. 32 All. 265. Hence this appeal. It has been . expressly laid down in the Full Bench case of Dalganjan Singh that, where on the perfect partition of a mahal under the North-Western Provinces Land Revenue Act, 1873, no new wajib-ul-arz has been framed for any of the new mahals, the question whether or how far a contract or a custom of pre-emption recorded in the wajib-ul-arz of the undivided mahal is still in force, or who is entitled to claim the benefit of it, is not capable of any absolute or invariable answer.' This shows that the mere fact that the words hissadaran deh have been construed to mean 'co-sharers in the undivided village,' is no reason for holding that the words 'hissadar deh' in the present case also mean a co-sharer in the undivided mahal and not a sharer in the deh, Nos. , village.

6. Again, in interpreting a wajib-ul-arz according to the ruling in the case of Dalganjan Singh 'no general consideration are of any value. In every case we must place ourselves as nearly as possible in the position of the parties and have regard to surrounding circumstances.' These remarks imply that the learned Judges who decided Dalganjan Singh v. Kalka Singh (1899) I.L.R. 22 All. 1 on placing themselves as nearly as possible in the position of the parties to the wajib-ul-arz and considering the surrounding circumstances came to the conclusion that by using the words 'hissadaran deh the framer of the wajib-ul-arz intended to confer ; the right of pre-emption on the co-sharers of the undivided deh meaning thereby the undivided mahal. It must be taken for granted that in the case such surrounding circumstances did exist as forced the learned Judges to come to that conclusion. It remains to be seen if in the case before us the circumstances are such as to make us conclude that the right of pre-emption is intended for the co-sharers of the undivided deh as one mahal. Deh is a Hindi word and means a definite area of agricultural , holdings with houses upon, and is thus a physical unit. Mahal is a corruption of an Arabic word and is a legal term meaning 'any local area held under separate engagement for the payment of the land revenue.' Deh and mahal are two distinct conceptions. In one deh there may be several mahals and in one mahal there may be several dehs or portions of them. It, however, sometimes happens that a definite area of land is one deh and also one mahal. This is a pure accident and must not lead to the erroneous notion that when the terms 'deh' and 'mahal' may be predicated of one and the same area of land, they became synonymous. When the wajib-ul-arz of the village Dharera was framed in 1272 Fasli, it was one deh and also one mahal. It was called a deh from the physical point of view and a mahal from the fiscal stand-point. The meaning of a 'hissadar in the deh of Dharera' is quite distinct from the meaning of 'a hissadar in the mahal of Dharera.'' The plain and natural meaning conveyed by the former is 'a sharer in the physical entity called Dharera' without any notion of his liability to the payment of revenue ; while the natural and ordinary meaning of the latter is 'a co-sharer in the mahal of Dharera who is a member of the co-parcenary body jointly and severally responsible for the revenue of the mahal.

7. There being a vast distinction between the word 'deh' and the word 'mahal,' the plain meaning of a 'hissadar deh' in the wajib-ul-arz we have to construe is 'a sharer in the village Dharera,' and there are no surrounding circumstances to lead me to infer that the intention of the framers of the wajib-ul-arz in question was to mean by those words 'a co-sharar in the undivided mahal of Dharera.' Had they any such intention, they would have used the expression 'hissadar mahal' instead of 'hissadar deh.' Moreover, the distinction sought to be drawn between a 'hissadar deh' and a 'hissadar mahal is too fine for the mental calibre of the class of people to which the ordinary f ramers of waib-ul-arzes belong. Again, in the wajib-ul-arz before us there' are indications which go to show that a 'hissadar deh' means 'a sharer in the village' and not 'a co-sharer in the undivided mahal.' One is that the framers are stating a custom which exists in the 'village' and not in the 'mahal' Another is that they use the word 'hissadar' in the singular number, showing thereby a complete absence of the idea of the co-parcenary body from their minds. The existence of the expression, 'As to the rights of co-sharers among themselves based on custom or agreement,' in the wajib-ul-arz in Dalganjan Singh's case might have been one of the surrounding circumstances which led the Chief Justice to hold that 'deh' in that wajib-ul-arz meant 'mahal' There is nothing in the case before us to show that the word 'hissadar' in the beginning of the pre-emption clause means 'a co-sharer in the undivided mahal of Dharera' to make me infer that that word in the expression 'hissadar deh' also means 'a co-sharer in the undivided mahal of Dharera.' The natural meaning of the pre-emption clause in the case before us to my mind is that at the time framing the wajib-ul-arz there existed a custom whereby a sharer in the village was entitled to pre-empt. The fact that he at that time was also a co-sharer in the undivided mahal of Dharera was a mere accident and not the differentia on which the existence of the right of pre-emption depends. It is admitted in Dalganjan Singh's case that persons other than co-sharers in an undivided mahal can have the right of pre-emption after a perfect partition, and that being the case to be a co-sharer in an undivided mahal, cannot be an essential of the right of preemption. For the above reasons I hold that the plaintiffs, on the right interpretation of the wajib-ul-arz of 1272 Fasli, notwithstanding a perfect partition, are, as sharers in the village, entitled to pre-empt. The result is that I would dismiss the appeal with costs.


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