1. This appeal is up for admission under Order 41, Rule 11, and from the date of the sale which took place in November 1923, it appears that the law to be applied is that contained in the Agra Pre-emption Act, Act XI of 1922.
2. Two wajib-ul-arzes were filed in the case, one of the year 1833 and the other of 1860 and Dr. Agarwala, who appears for the vendee-appellant, informs us that the wajib-ul-arz of 1860 contains no provision for pre-emption. He, therefore, refers us to the language of Section 5 of the Agra Pre-emption Act, Act XI of 1922, as it stood before it was altered by the amending Act, Act VIII of 1923. According to the former state of things, Section 5 laid down that a right of pre-emption should be deemed to exist only in mahals or villages in respect of which the wajib-ul-arz prepared prior to the commencement of this Act recorded a custom, contract or declaration, etc.
3. On the language of this section as it stood, it necessarily followed that the wajib-ul-arz to be considered was the last one prepared prior to the commencement of the Act. The amending Act, Act VIII of 1923, however, altered the language and laid down that the right was to be deemed to exist in mahals in respect of which any wajib-ul-arz prepared prior to the commencement of the Act records a custom, etc. and it is to be observed that this Act was given retrospective effect so as to apply from the date on which the Agra Preemption Act came into force, that is to say, from the 17th of February, 1923.
4. As the Act now stands, therefore, it seems quite clear that in the case with which we are concerned the Court below was entitled to refer to the wajib-ul-arz of 1833 which admittedly contains a record of the custom of pre-emption.
5. Dr. Agarwala, however, has argued that the Amending Act, Act VIII of 1923, was ultra vires of the local legislature, and in this connection he refers to Section 80(a), Sub-section 2 of the Government of India Act. Sub-section 2 of the section just mentioned gives authority to a local legislature to repeal or alter, as to its own province, any law made either before or after the commencement of the Government of India Act by any authority in British India other than that local legislature.
6. From the words 'other than that local legislature' Dr. Agarwala desires us to infer that no local legislature can, by reason of these words, repeal or alter any enactment of its own.
7. We do not think that Section 80(a), Sub-section 2 is to be construed in this sense. Without Sub-section 2 no local legislature would have authority to repeal or alter, as to its own province, any enactment made by the legislature of any other province, and it was for that express purpose that power was given under sub Section 2. But under Section 80, Sub-section 1 we find that the local legislature of any province has power, subject to the provisions of the Act, to make laws for the peace and good government of the territories for the time being constituting that province and we have no doubt whatever that the power to make laws for peace and good government includes the power to amend and alter or, if necessary, repeal laws previously enacted by that local legislature. We cannot, therefore, accept the argument that the amending Act, Act VIII of 1923, was ultra vires of the legislature of these Provinces.
8. The only other question which is raised is with regard to preference. The contention for the vendee appellant is that the pre-emptor in this case had no better right to pre-emption than he had.
9. Section 12 lays down the classes of persons who are successively entitled to exercise the right of pre-emption. The second class consists of co-sharers in the sub-division of the mahal in which the property is situated.
10. In the present case the pre-emptor and the vendor are co-sharers in khata 21. The vendee is a co-sharer in another khata and is also a joint sharer in a third khata which we understand to be a joint khata relating to shamilat lands.
11. It is clear to our minds, therefore, that the pre-emptor is a person who falls within class 2 and that the vendee, whatever class he falls in, must be in some class below class 2, and that being so we think that the plaintiff, as a person in class 2, has the better right. It has been sought to be argued that these classes only lay down an order of preference when the sale has been to a stranger, but we do not think that that is the meaning of the section and we have interpreted it already in a different sense. We think that Section 12 lays down an order of preference by which any person in class 1 is entitled to pre-empt as against any person in any of the other classes, namely, classes 2, 3, 4 and 5.
12. We dismiss the appeal under Order 41, Rule 11, C.P.C.