1. The ground taken in the memorandum of appeal is that the record of rights has been misconstrued by the Lower Appellate Court, and that on a true construction of the record the respondent has no right to pre-empt and his suit should have been dismissed. The respondent was plaintiff in the Court of First Instance. The suit he brought was to enforce a right of pre-emption under this same record of rights in respect of a portion of land known and styled in the village papers as 'resumed revenue-free land of mauza Deobarampur.' The respondent was one of those persons commonly known as co-sharers in the village of Deobarampur. In this village, besides the ordinary co-sharers, there were persons who were proprietors of land which had once been recorded as revenue-free, but had, before the present suit had been brought, been assessed to Government revenue. There were in the village also other persons who possessed proprietary interests of other kinds, but with them we are not concerned. The portion of land which forms the subject-matter of this suit was a portion of the land formerly rent-free, but now assessed to Government revenue. The respondent in his plaint distinctly bases his right of pre-emption upon the clause relating to pre-emption as recorded in the village record of rights. That clause runs as follows: 'When any co-sharer (hissadar) is bent on selling or mortgaging his right (haqqiyat), then first that co-sharer who is nearest to the sharer beat on transfer can take it: after that any other person who is interested (shariq) in the village, rank by rank, can take it. If no person interested in the village takes it then a stranger may take it.' The Lower Appellate Court inclining to the view that the respondent and the vendor were sharers in one and the same mahal of the village, and that respondent was entitled to pre-empt and had a preferential right of purchase as against the appellant, who is admittedly a stranger, remanded the case to the Court of First Instance for trial of the remaining issues. The Court of First Instance had held a contrary view, and without determining the other questions in issue had dismissed the suit on this preliminary point. Hence the question which we have to determine in the present appeal is, whether the clause above quoted from the village record of rights does or does not confer on the respondent the right of pre-emption over that portion of the revenue-free grant subsequently assessed to revenue which is the subject-matter of this litigation. The case for both the appellant and the respondent was argued with great ability, and it was contended with much force on behalf of the respondent that, although the vendor was proprietor of a plot only of the resumed revenue-free land, he was still one of those persons termed in the record of rights a sharer (hissadar). In support of this contention our notice was directed to Section 62 of Act No. XIX of 1873; to the rules of the Board of Revenue, edition 1876, Department I, page 10, and especially to Rules 30 and 51. We were also referred to the precedent of Inayat Husain v. Amin-ud-din Ahmad Weekly Notes 1888 p. 182, Safdar Ali v. Dost Muhammad Weekly Notes 1890 p. 117, and the Full Bench ruling of Niamat Ali v. Asmat Bibi I.L.R. 7 All. 626. The last of these rulings deals with the case of a person, who was admittedly a co-sharer in the ordinary sense of the term. In Safdar Ali v. Dost Muhammad the case again was that of a co-sharer in the mahal. In both cases the dispute did not turn, as in the present case, upon whether a person who is only a proprietor of a portion of land and not one of the general proprietary body of a mahal can be rightly termed a sharehoder in the mahal. The case of Inayat Hausain v. Amin-ud-din Ahmad turned upon the interpretation to be given to the word shank. On the other side we were referred to a passage in the petition for partition which had been put in by the predecessor in interest of the present respondent, and to a second passage in the partition proceedings. In both of these the predecessor in interest of the respondent distinctly sets out that neither she, styling herself hissadar (or sharer), nor any of the other sharers had any concern with the plot in which the subject-matter of this suit is situate. It was also pointed out to us that both in Section 62 of Act No. XIX of 1873 and in Rule 51 of the rules of the Board of Revenue a separate place is assigned in the record of rights to the co-sharers distinct from that assigned to all persons occupying portions of the land in the village or in possession of any heritable or transferable interest in such land.
2. The particular portion of the record of rights which recites the custom regarding pre-emption finds place only in the chapter relating to the rights of sharers amongst themselves founded on custom or agreement. It is not to be found in that portion which relates to other persons. It is true that the rules contained in the circular of the Board of Revenue to which our notice was directed are rules for the guidance of Settlement Officers prescribed under Act No. XIX of 1873, and that the village record of rights with which we are concerned bears date 1870, but the exact similarity in the heading to Chapter II of the document with that contained in the circular of the Board of Revenue shows that there must have been in existence some similar circular upon which this record of rights was framed. Looking therefore to the place in this record of rights in which the rule regarding pre-emption is to be found, I, with considerable hesitation, come to the conclusion that the persons only to whom it is intended to apply are those who are known and were known in the village as co-sharers in the ordinary language of the day, and that it was understood in the village that those who held any portion of the once revenue-free and subsequently assessed lands were in no way concerned with it, and that the rule or custom of preemption was not a rule or custom relating to them. The right of pre-emption not being an ordinary right, but one for which express provision must be found, I come to the conclusion that in this case and under the special circumstances the respondent has not made out his claim to preempt and that the Court of First Instance was right in dismissing his suit.
3. I concur with my brother KNOX in thinking that this appeal must succeed. The plaintiff came into Court asserting a right to pre-empt, based on a clause in the wajib-ul-arz of the village, and the only question we have to decide in this appeal is whether the wajib-ul-arz gives the plaintiff the right he claims or not. The wajib-ul-arz is drawn up in four chapters. We have only to consider the second and third of those chapters. The second deals with the rights of sharers among themselves; the third deals with the rights of subordinate holders. It is in Chapter II that the clause on which the plaintiff relies is to be found. The sale which gave rise to this suit was one by which a subordinate holder, who comes under Chapter III, conveyed his property to the respondent before us. I think it is clear that the meaning of the framers of the wajib-ul-arz was to distinguish subordinate holders from co-sharers proper. No right of pre-emption is expressly given when a sale is made by such subordinate holders. It is only in the case of a sale by a sharer that this right arises. In Chapter III there is a clause by which the zamindars of the village (and by zamindars, I understand the co-sharers) expressly disavow any right of interference with property such as that which formed the subject of this sale. I think for the plaintiff to endeavour to assert a right of preemption in respect of such property is to go in the teeth of the arrangement which was come to at the time the wajib-ul-arz was framed, to which the co-sharers and the subordinate holders had been signatories. Further, as has been pointed out by my brother Knox, the predecessor in title of the present plaintiff, when a partition was being carried out in 1889, repeated this disavowal of all concern with the resumed revenue-free land. For these reasons I think that the view taken by the Court of First Instance was the correct one.
4. This appeal is decreed, the order of the Lower Appellate Court is set aside, and that of the Court of First Instance restored with costs in all Courts.