1. This is a plaintiffs, appeal arising out of a suit for pre-emption. The suit has been dismissed by both the Courts below on the ground that the plaintiffs did not possess any preferential right of pre-emption as against the vendee.
2. It appears that the property in dispute is situated in a sub-division No. 4 of Mahal Jageshar Rai in village Barua Khurd in the district of Ghazipur. The defendants second set, namely, defendants 2 to 4, executed a sale deed of the property in favour of defendant No. 1, the defendant first set, for an ostensible sale consideration of Rs. 2000. The plaintiffs appellants, who are admittedly co-sharers in the mahal, brought the suit which has given rise to this appeal for pre-emption on the ground that they were co-sharers in sub-division No. 4 in which the property was situated, while the vendees were not co-sharers in that sub-division, though they were co-sharers in the other sub-division No. 1 of the same mahal. They, therefore, claimed that they had preferential right of pre-emption. They further claimed that the property was, in fact, sold not for Rs. 2000 as shown in the sale-deed, but for Rs. 1,400.
3. The trial Court held that the property was sold for Rs. 2000 and that as the various sub-divisions in the mahal were not assessed to separate revenue and the entire mahal was assessed to joint revenue making the co-sharers jointly liable for its payment, it could not be said that the plaintiffs had any preferential right of preemption. The lower appellate Court has come to the same conclusion as regards the question of preferential right of the plaintiffs, but has not gone into the other question raised before it, namely, whether the correct sale price was Rs. 1,400.
4. In second appeal before me, it has been urged that when there were admittedly several sub-divisions in the mahal as shown in the khewat, the mere fact that separate land revenue was not assessed on them was of no consequence and the plaintiffs should have been held to have had preferential right as against the vendee. I am of opinion that this contention is sound.
5. Section 12 of the Agra Pre-emption Act runs as follows:
'(1) Persons of the following classes shall be successively entitled to exercise the right of pre-emption;. Class 1--Where the interest is a petty proprietary interest, coparceners in that interest, Class II-- Co-sharers in the sub-division of the Mahal in which the property is situated, Class III--Where such sub-division is a part of a larger sub-division of the Mahal, co-sharers in such larger division, Class IT-- Co-sharers in the Mahal, Class V-- Co-sharers in the village.
6. Glasses II and III speak of sub-divisions and divisions of a mahal and class IV refers to co-sharers in the mahal. The words 'sub-divisions' or divisions of a mahal have not been defined in the Pre-emption Act, nor have they been defined in the Land Revenue Act. The word 'division' is used in Section 106, Land Revenue Act, where 'partition' is defined as follows:
'Partition means the division of a Mahal or a part of a Mahal into two or more portions, each consisting of one or more shares. In 'imperfect partition' the several portions remain jointly responsible for the revenue assessed on the whole Mahal. In 'perfect partition' the whole Mahal is divided and the several portions become separate Mahals, each severally responsible for the revenue distributed thereon.'
7. Now, in the present case, there was a perfect division of the village in the year 1905. Two mahals were formed, one was mahal Jageshwar Rai, in which the property in dispute is situated, and the other was Mahal Dudhnath Rai. At that time there was no further partition of these two mahals, but it appears that at some subsequent time an imperfect partition did take place because the khewat shows that mahal Jageshar Rai stands divided into several portions marked by different serial numbers. These serial numbers denote the different divisions or sub-divisions of the mahal. Their different areas are mentioned and each area is owned by a separate set of co-sharers. A co-sharer in one serial number cannot be construed to be a co. sharer in the other serial number. It is clear that these serial numbers are sub-divisions of the mahal as contemplated in classes II and in of the Pre-emption Act.
8. It is true that the laud revenue has not been divided as between the various numbers, but that circumstance is wholly immaterial in view of She definition of 'imperfect partition' already quoted from Section 106, Land Revenue Act. In an 'imperfect', partition all the co-sharers of the mahal remain jointly responsible for the payment of the entire land revenue. What we have to see is whether a definite area with definite plots has been separately marked as a sub-division. This has been done in Mahal Jageshar Rai. There can be no doubt, therefore, that the plaintiffs appellants were co-sharers in a division or a sub-division of Mahal Jageshar Rai which was numbered as No. 4 and in which the vendee was not a co-sharer. The plaintiffs were, therefore, entitled to pre-empt the property sold in preference to the vendee.
9. The result, therefore, is that the appeal is allowed, the decree of the lower appellate Court is set aside and the case is remanded to that Court for determination of the other questions left undecided by that Court. The appellants are entitled to the costs of this Court. Costs of the Courts below shall abide the result.