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NaraIn Prasad and ors. Vs. Munna Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All329
AppellantNaraIn Prasad and ors.
RespondentMunna Lal and anr.
Excerpt:
pre-emption - wajib-ul-arz--co-sharer--owner of resumed muafi land. - .....of the learned judge of this court. it is found that the plaintiffs are co-sharers in resumed muafi land, a portion of which is the subject matter of the sale sought to be pre-empted. this resumed muafi is included in khewat no. 3, in which the plaintiffs are' co-sharers, whilst the defendant vendee munna lal is not a co sharer in khewat no. 3, bus is a co-sharer in khewat no. 5, with which the land in dispute is not connected, except in the fact that both khewats are recorded as appertaining to the same mahal. the provision of the wajib-ul-arz is that if from among the malikan any co-sharer wishes to sell his haqqiat, he will first sell the same to a co-sharer in the property (shariq haqqiat), and in case the latter refuses to purchase then to anyone he likes. the muafi in question.....
Judgment:

John Stanley, C.J. and William Burkitt, J.

1. We have given most careful consideration to the arguments addressed to us by the learned pleaders for the respective parties and have perused the judgment of the learned District Judge and also the judgment of the learned Judge of this Court. It is found that the plaintiffs are co-sharers in resumed muafi land, a portion of which is the subject matter of the sale sought to be pre-empted. This resumed muafi is included in khewat No. 3, in which the plaintiffs are' co-sharers, whilst the defendant vendee Munna Lal is not a co sharer in khewat No. 3, bus is a co-sharer in khewat No. 5, with which the land in dispute is not connected, except in the fact that both khewats are recorded as appertaining to the same mahal. The provision of the wajib-ul-arz is that if from among the malikan any co-sharer wishes to sell his haqqiat, he will first sell the same to a co-sharer in the property (shariq haqqiat), and in case the latter refuses to purchase then to anyone he likes. The muafi in question was resumed before the preparation of the wajib-ul-arz in which this provision is found, and it seems to us that the word malikan must be taken to include the proprietors of the resumed muafi and that co-sharers of the land in the khewat in which the land sold is situate have a preferential right to pre-empt over co-sharers in land in a different khewat of the resumed muafi. The learned District Judge, who accepted the view entertained by his predecessor in office, appears to us to have correctly appreciated the position of the parties in regard to the property. The learned Judge of this Court has referred to a number of cases, but we find that these cases have little or no bearing upon the case before us. In fact he states in his judgment that they are distinguishable, although he attaches some weight to them. A case which does appear to throw light upon the question is one which was not cited to him, namely, the case of Lalta Prasad v. Lalta Prasad Weekly Notes 1883, p. 165. In that case a somewhat similar question to the one before us was considered. A zamindari village contained a plot of land which at one time had been held on a muafi tenure, but had been resumed and had become zamindari. This plot was separately assessed to revenue, hut had no separate wajib-ul-arz. A co-sharer in it sold his share to the defendant, a stranger, upon which the plaintiff, a co-sharer in the old zamindari, but not a co-sharer in the resumed muafi, brought a suit to enforce a right of pre-emption, and it was held by Stuart, C.J., and Tyrrell, J., that the lower courts were wrong in limiting the right of pre-emption to the old zamindari lands and in not extending it to the part of the village, which had formerly been muafi in its tenure. So here, we think the learned Judge of this Court was wrong in not extending to the owners of the resumed muafi the rights which were given to malihan generally in the wajib-ul-arz prepared after the resumption of the muafi land and the inclusion of this land in the mahal. We therefore allow the appeal. We set aside the decree of the learned Judge of this Court, and we restore the decree of the lower appellate Court with costs in all Courts.


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