Skip to content


Jagar Deo Gir Vs. Mahadeo Prasad and - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad
Decided On
Judge
Reported in(1916)ILR38All260
AppellantJagar Deo Gir
RespondentMahadeo Prasad And; Sundar Chaudhari and ors.
Excerpt:
.....- - it is an admitted fact that the plaintiff has no share in the lands which constitutes the 16 anna mahal nor does he enjoy any part of the income derived therefrom. clause 10 is the clause which sets out the custom of pre-emption and it distinctly confines the custom to the co-parcenary body of the 16 anna mahal and does not extend it so as to include the owner of the resumed muafi. this clearly did not relate to the resumed muafi, which did not constitute a share and moreover was in the occupation and possession of a mortgagee. ' it will be noticed that the jama of the mahal is to be paid out of the income of the mahal and that it is clearly distinguished from the jama of the resumed muafi which has to be paid by the muafidar himself, though he takes a receipt, in the name of the..........under the custom to preempt. admittedly in the village of amwa singh, there is only one sixteen anna mahal in which the plaintiff has no share whatsoever. the vendors are the owners of the whole mahal and have by their sale-deed transferred to the vendees the whole of it. in short the vendors had no co-sharer with them, a fact of very great importance as we shall shortly show.4. there is, however, in the village a certain area of land which up to 1840 was held by the predecessors in title of the plaintiff, free of revenue.5. in 1840, or shortly before, government resumed the muafi or revenue free grant, assessed it to revenue, and the holder thereof paid that revenue and still pays it direct to government.6. this area measures 59 bighas 11 biswas 9 dhurs, and its revenue is rs. 87-2 +.....
Judgment:

Henry Richards, C.J. and Tudball, J.

1. This is defendant vendee's appeal arising out of a pre-emption suit based on village custom, which has been decreed by the court below. The last four pleas in the memorandum of appeal have not been pressed. The first three grounds of appeal raise only one question, viz. whether under the custom of pre-emption prevailing in the village of Amwa Singh, the plaintiff has any right at all to pre-empt the property in suit.

2. The custom on the point of pre-emption was not stated in the plaint. The plaintiff in paragraph 1 thereof alleged that he and the defendants second party were co-sharers in the village, that a custom prevailed in the village, that the vendees were strangers and that as against them the plaintiff had a right of pre-emption under the wajib-ul-arz.

3. The plea taken before us by the vendees is that in the circumstances of this village the plaintiff is not a co-sharer with the vendors and is not entitled under the custom to preempt. Admittedly in the village of Amwa Singh, there is only one sixteen anna mahal in which the plaintiff has no share whatsoever. The vendors are the owners of the whole mahal and have by their sale-deed transferred to the vendees the whole of it. In short the vendors had no co-sharer with them, a fact of very great importance as we shall shortly show.

4. There is, however, in the village a certain area of land which up to 1840 was held by the predecessors in title of the plaintiff, free of revenue.

5. In 1840, or shortly before, Government resumed the muafi or revenue free grant, assessed it to revenue, and the holder thereof paid that revenue and still pays it direct to Government.

6. This area measures 59 bighas 11 biswas 9 dhurs, and its revenue is Rs. 87-2 + 10-14-0 cesses.

7. The area of the 16 anna mahal is 842 bighas, 10 biswas and one dhur and its total revenue Rs. 613-9-9. The plaintiff is a Goshain. The vendors who owned the 16 anna mahal are mallahs by caste. The village is in the Ghazipur district where the permanent settlement is in force. It is an admitted fact that the plaintiff has no share in the lands which constitutes the 16 anna mahal nor does he enjoy any part of the income derived therefrom. In the same way the vendors had no right, title or interest is the land of the resumed muafi.

8. Prima facie, therefore, the plaintiff was not a sharer, much less a co-sharer with the vendors in anything; but on his behalf it is urged that he and the vendors were all jointly liable for the revenue of the whole village (i.e., both the mahal and the resumed muafi) and that he is in this way a co-sharer in the village and therefore under the custom entitled to pre-empt. It is therefore necessary to examine the history of the village and also the evidence put forward to prove the custom. The village is situated in the Ghazipur district and is permanently settled. A reference to the wajib-ul-arz of 1840 will show (in the preamble) that the revenue of the mahal was permanently fixed at Rs. 630-9-9 in the year 1197 Fasli (1789-1790 A.D.)

9. That same preamble and Clause 7 show that Khandaigir, the plaintiffs' predecessor in title, had, until 1840 A.D., held a certain area, revenue free, but that it had just before 1810 been resumed by Government and a revenue of Rs. 88 fixed upon it, (the correct figures as per Khewat are Rs. 87-2 plus 14 annas for road cess). The same document shows that in 1840 certain lands within the mahal were held as jagirs by certain persons, and the Khewat of 1290 Fasli (1882-1883), shows that an additional sum of Rs. 13 had been added to the revenue of the mahal in respect to those jagirs so that the revenue of the mahal in 1882-1883 was recorded as Rs. 630-9-9 plus Rs. 13 for the jagir. Total Rs. 643-9-9.

10. It will also be seen that in 1882-1883 a separate khewat called a supplementary khewat was drawn up for the resumed Milak land, i.e., the resumed muafi.

11. Furthermore, in 1248 Fasli (1841) a separate (vide 9A) pattidari statement (or khewat) was drawn up for this land showing Kandhaigir as the lambardar thereof and the Government demands as Rs. 88 (Revenue Rs. 21-3-plus road cess Rs. 6-14-0.)

12. In 1840 also, the owners of the 16 anna mahal were not of the same caste as the owner of the resumed muafi. It is thus clear that when the permanent settlement was made, there was one mahal assessed to revenue and a certain area outside that mahal not assessed to revenue, though liable to assessment.

13. The mahal and this area are owned by separate bodies of persons. There was but one engagement for the payment of revenue and that by the owners of the mahal only. In the year 1840 there was no new settlement. It could only have been a revision of records as the settlement was permanent.

14. But a wajib-ul-arz was drawn up. The preamble begins 'we (here follow the names of the co-sharers) zamindars and shareholders of mauza Amwa Singh do declare as follows.' It will be noted that this list of share-holders does not include 'Kandhaigir' the owner of the resumed muafi, He is not to be confounded with Kandhaiya Rai. The declarants then state that the jama of this mahal was permanently fixed at Rs. 630-9-9 in the settlement of 1197 Fasli and the jamna of the land of Kandhaigir has 'now' been fixed as Rs. 88 and that they voluntarily execute the wajib-ul-arz agreement and that they will be bound by the conditions entered therein.

15. In Clause 1 they say: 'We pay the Government revenue and are in possession.'

16. In Clause 7 they stated: 'Kandhaigir has muafi land which has been resumed and has recently been settled at a jama of Rs. 88, We shall take that jama also and shall pay it along with our jama.'

17. In Clause 10, they say: 'Should-any of us wish to transfer his share in whole or in part by sale or mortgage, he should inform his co-sharers of the village and sell the share to them for a price. If they refuse to take it or pay the proper price he is at liberty to make a sale or mortgage to any person he likes. Should he transfer his share to a stranger without informing the co-sharers of the village the sale shall not be held to be valid.'

18. In paragraph 11 they say: 'We shall always remain in possession according to the details of shares given at the foot.'

19. In paragraph 12 they say, in respect of the appointment of a new lambardar: 'Another person shall be appointed as lambardar according to the opinion of the majority of us.'

20. In paragraph 13 they say: 'We make collections from every tenant, in respect of our respective shares according to the patwari's rent roll.'

21. After paragraph. 16 follow the' details of the shares' mentioned in para. 11. These details include only the shares which go to make up the 16 anna mahal and do not include the muafi land of Kandhaigir.

22. The wajib-ul-arz is signed by or on behalf of the co-sharers of the mahal and not by Kandhaigir. Clause 10 is the clause which sets out the custom of pre-emption and it distinctly confines the custom to the co-parcenary body of the 16 anna mahal and does not extend it so as to include the owner of the resumed muafi.

23. It will also be seen that Kandhaigir had a separate Khewat or pattidari statement allotted to him at this revision of records, which he alone signed, vide Exhibit N at page 9 of the appellant's book. It is clear that his liability for the revenue of his land was entirely separate under agreement with Government made some 51 years after the agreement of the permanent settlement. All that the co-sharers of the 16 anna mahal agreed with Government to do in respect thereto was to collect it from him and pay it into the treasury 'along with our jama.'

24. A mahal means one of four things as laid down in the definition in Section 4, Clause (4), of the Land Revenue Act. We need not consider Sub-clauses (b), (c) and (d) as we are not now concerned with them in this case. Sub-clause (a) gives the general definition and we see that a mahal means any legal area held under a separate engagement for the payment of land revenue provided that (1) if such area consists of a single village, or portion of a village a separate record of rights has been framed for such village or portion. In the case now before us the village consisted of one mahal plus a bit of resumed muafi land held under a separate agreement for the payment of its revenue. The mahal had a separate record of rights and the co-sharers did not take upon themselves any responsibility for the revenue of the resumed muafi. They agreed to collect it on behalf of Government and to pay it into the treasury when they paid their own. Section 141 of the Revenue Act says : In the case of every mahal the revenue assessed thereon shall be the first charge on the entire mahal and on the rents, profits or produce thereof; and Section 142 says: 'All the proprietors of a mahal are jointly and severally responsible to Government for the revenue for the time being assessed thereon. '

25. It is therefore clear that in this village of Amwa Singh, the co-sharers of the 16 anna mahal (and that mahal itself) were responsible for the revenue assessed thereon and were in no way responsible for the revenue of the resumed muafi, in which they had no right, title or interest, which was held by Kandhaigir under a separate engagement and which was not liable in any way for the revenue of the 16 anna mahal.

26. It is of no avail to say that the resumed muafi did not constitute a mahal in itself. We are not so sure that it did not do so, but even if it did not, that fast did not render the 16 anna mahal and its proprietors responsible for its revenue. There are many such plots in these provinces. Such was the state of affairs at the time when this muafi, was resumed by Government.

27. We next come to the wajib-ul-arz drawn up at the next revision of records in 1290 F (1882-1883 A.D.)

28. The first thing to be noticed is that by that time both the 16 anna mahal and the resumed muafi had changed hands.

29. The rais who held the former had been replaced by two Mallahs, Baijnath, son of Katwaru, and Mahadeo, son of Bachchu Lal, both of Ghazipur town. They each owned a half of the mahal (vide Khewat at page 11 of the appellant's book). The revenue of the mahal was Rs. 643-9-9 being the original sum of Rs. 630-9-9 plus Rs. 13, assessed on the old jagir lands of the mahal.

30. The resumed muafi had gone to one Alam, a Ranki by sect and a Musalman. Moreover he had mortgaged it to other Musalmans who were in actual possession. Strangers had thus come in and replaced the old owners. We see that at the present moment the resumed muafi has gone back to a Goshain, the plaintiff, and the Mallahs have now sold their 16 anna mahal to some Mahajans, the present appellants.

31. At this revision of records two separate khewats were drawn up, (1) one which is headed the khewat of mauzi Amwa Singh for 1290 F. (vide IIA) and which relates only to the 16 anna mahal, and (2) one which is headed 'Supplement to the khewat in respect to the resumed milak lands in mauza Amwa Singh.' The former is signed by Baijnath, one of the two co-sharers, and there is appended to it a note, signed by the Deputy Collector and other officials which ran as follows: 'Baijnath zamindar verified this khewat to day for himself and for the other co-sharers as mukhtar.'

32. The latter (supplementary khewat) was not signed, but bears a note signed by the Deputy Collector: 'To-day Bahullah having appeared as a Mukhtar on behalf of Alam, holder of the resumed land and of Abdus Samad, admitted this khewat to be correct.' There were no fresh engagements taken for the payment of the revenue; the permanent settlement prevented that; but a new wajib-ul-arz was drawn up. It was divided into chapters.

33. Chapter I, is headed 'Customs of the mahal and the nature of the property.'

34. Paragraph 1 sets forth that the village is in the form of zamindari tenure and all the proprietors are in proprietary possession and occupation of their respective shares. This clearly did not relate to the resumed muafi, which did not constitute a share and moreover was in the occupation and possession of a mortgagee.

35. Paragraph 2 runs thus--'The lambardar deposits the Government dues (jama) in the Government Treasury from the income of the mahal in the following instalments; and the jama, of the resumed muafi land is deposited by the muafidar' himself, who obtains the revenue receipt in the name of the lambardar, inasmuch as the lambardar is under all circumstances liable for payment of the jama and is held liable in case the revenue falls into arrears.' It will be noticed that the jama of the mahal is to be paid out of the income of the mahal and that it is clearly distinguished from the jama of the resumed muafi which has to be paid by the muafidar himself, though he takes a receipt, in the name of the lambardar. It will be remembered that in the former wajib-ul-arz the zamindars co sharers agreed with Government to recover the revenue of the resumed muafi from the holder thereof arid to pay it into the treasury with their own revenue. The only change introduced in this year was that in future the muafidar was to pay his own revenue direct to Government.

36. Chapter II is headed--'The rights of the co-sharers inter se based on custom or agreement.'

37. An examination of the whole of this chapter will show that its contents relate in toto to the rights of the owners of the 16 anna mahal and in no way refer to the rights of either inferior proprietors or the owner of the resumed muafi. For these latter persons, a separate chapter No. 3 was reserved headed 'Rights of persons in possession' i.e., Hukuh-i-Kabizan. The reason of this separation is obvious when we examine Section 62 of the Act XIX of 1873, the Revenue Act which was then in force in these provinces. It directed the Settlement Officer to frame for each mahal a record containing a list of-

(a) All the co-sharers.

(b) All other persons occupying any portion of the land therein or who are in possession of any heritable and transferable interest in such land or receiving rent in respect thereof.

(c) The nature and extent of the interest held therein by each of such co-sharers and other persons.

(d) All persons holding land free of rent or revenue free.

38. It will be noticed that the body of co-sharers is a distinct ard separate body from that of those persons who hold land revenue free, etc. The latter are not co-sharers in the mahal.

39. Throughout chapter II it is stated that the proprietors of the mahal are joint in food and that their income is jointly enjoyed by them (vide paragraphs 1 and 7). The owners of the 16 anna mahal were Hindus and joint. The owner of the resumed muaji was a Musalman and therefore clearly does not come within the term proprietor used in this chapter.

40. In paragraph 2 it is stated that the post of lambardar if it falls vacant is filled by a nominee of the sharers of the mahal. In paragraph 11 it is stated that muafi grants are made and resumed by the proprietors of the mahal, and then in paragraph 13 it is laid down as follows: 'The custom as to the right of pre-emption is this: When a co-sharer wants to transfer his property he at first transfers it to his near relation and afterwards to his distant relatives from among the co-sharers of the village. If these persons refuge to take it, then other sharers in the village who are not relatives are entitled to take the property.' The custom sets forth a right of the co-sharers inter se, as the heading of the chapter shows and it does not state it as a rights also of the owner of the muaji. His rights are stated in Chapter III, paragraph 2 Chapter IV relating to the rights of tenants concludes the wajib-ul-arz.

41. To sum up briefly, the custom according to the entry in both wajib-ul-arzes was clearly a custom existing among the co-sharers in the 16 anna mahal, with which the owner of the resumed muaji hadno concern. In the document of 1840 the custom was clearly thus stated, the resumed muaft-holder not even dictating or signing the document.

42. In that of 1882, his signature appears but his rights are separately treated from those of the owners of the 16 anna mahal and not in the chapter in which the custom of pre-emption is mentioned.

43. In both these years there was a separate khewat for each of these two sets of proprietors. The 16 anna mahal was held under one engagement for the payment of revenue made at the time of the permanent settlement.

44. The resumed muafi was held under an entirely separate engagement made at the time of resumption in 1840 or shortly before. It is therefore clear that the owners of the mahal and the mahal itself with its rents, profits and produce are in no way responsible to Government under Sections 141 and 142 of the Revenue Act (III of 1901), for the revenue of the resumed muafi, even though the lambardar of the mahal may have agreed with Government in 1840, to collect the revenue of the latter from the owner thereof and pay it into the treasury with his own. That agreement came to an end in 1882, when it was agreed that the resumed muafi holder was to pay it himself direct to Government.

45. There is therefore no right common to the owners of the mahal and the resumed muafi. The owners of the one have no right or interest in the other or its rents, profits or produce, nor do they share in the responsibility for the revenue of the other. They are not co-sharers in any sense of the word. The object of the custom of pre-emption in village has frequently been stated to be the prevention of the entry into the co-parcenary body of an outsider. If we leave out of consideration some rare and unusual customs (which at times give the right to certain persons, by reason of blood relationship or otherwise, who have no share), it is clear that he who seeks to prevent this must himself be a member of that co-parcenary body. In this class of cases this Court has repeatedly laid emphasis on the necessity for the pre-emptor proving that he is a co-sharer, in either the profits or the liability for revenue, with the vendor, vide Dalganjan Singh v. Kalka Singh (1899) I.L.R. 22 All. 1 and Ganga Singh v. Chedi Lal (1911) I.L.R. 33 All. 605, in the latter of which the former is quoted, discussed and approved.

46. In the present case the plaintiff pre-emptor is clearly not a co-sharer with the vendors at all there being no right or liability common to both.

47. The position of the owner of a resumed muafi in regard to pre-emption has frequently been the subject of decision in this Court and those decisions have been practically uniform. In Kallian Mal v. Madan Mohan (1895) I.L.R. 17 All. 447, it was held that the owner of a resumed muafi was not a co-sharer in the village within the meaning of the wajib-ul-arz. This was quoted and followed with approval in Narain Das v. Ram Saran Das (1898) I.L.R. 20 All. 419. The same view was taken in Raghunath Prasad v. Kanhaya Lal Weekly Notes 1902 p. 68 and Ahmad Ali v. Najam-un-nissa (1905) 2 A.L.J. 145, and in Battu Lal v. Bhola Nath (1913) 19 Indian Cases 119.

48. On behalf of the respondent our attention has been called to four reported decisions reported in 8 A.W.N. 182 (1888) I.L.R. 7 All. 626, I.L.R. 12 All., 426 and I.L.R. 30 All. 329.

49. In the first three of these cases there was no question whatever of the position of the owner of resumed muafi,.

50. In the first of these cases the pre-emptor Tara Chand was the owner of certain plots, which were part and 'parcel of the actual patti, the revenue of which had been reduced because these plots had been planted as groves, but they being part of the mahal were responsible to Government for the revenue of the mahal,

51. In the second of these cases the plot exchanged was similarly an integral part of the mahal.

52. In the third the defendant vendee was held to be a co-sharer because he was the actual owner of certain plots all duly assessed to revenue and actually part of the mahal for the whole revenue of which they stood charged. Those cases are therefore not in point. In the case reported in 30 All. 329, the property sold was part of a resumed muafi and the plaintiff pre-emptor was a co-sharer in that resumed muafi while the vendee was a co-sharer - in another one.

53. The custom as laid down in the wajib-ul-arz in that case was:

If from among the Malikan deh, any co-sharer wishes to sell his property (Hakiyat), he will first sell the same to a co-sharer in the property {Shank Hakiyat) and in case the latter refuse to purchase, then to any one he likes.

54. It was held that resumed muafi was 'hakiyat' and that the owner of resumed muafi was a malik or owner. In the circumstances of that village and custom the decision may have been perfectly correct. The plaintiff was actually a co-sharer in the property part of which had been sold. The Judgment does not set forth the constitution of the village. It quotes with approval the decision in Lalta Prasad v. Lalta Prasad Weekly Notes 1881 p. 165. In this latter case it was held that the words 'in the zamindari' occurring in the wajib-ul-arz were used only to limit the qualification of a brother by blood and not to circumscribe the area in the mauza to be governed by the clause in the wajib-ul-arz relating to the right of pre-emption. The report does not give the whole judgement, but the case appears somewhat in favour of the respondents' contention. It is, however, not in accordance with the long line of decisions all the other way from 1895 up to the present time and the question of co-ownership was not considered. In our opinion, the plaintiff pre-emptor in the present case had no community of interest; was not a co-sharer with the vendors, and was not one of those to whom the custom as proved gave a right of pre-emption. The decision of the court below on this point was wrong.

55. It was necessary for the plain tiff to prove not only that some custom prevailed. He had to prove a custom which gave him a right to pre-empt the property in suit. A ay evidence given in the case was as to a custom between co-sharers. The plaintiff, as we have shown, was not a co-sharer with the vendor. He has failed to prove the existence of a custom which gives him a right of pre-emption as against the vendees.

56. We, therefore, allow this appeal, sot aside the decree of the court below and dismiss the suit with costs in both courts.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //