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Mahabir Rai and ors. Vs. Rajender Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty ;Civil
CourtAllahabad
Decided On
Reported inAIR1940All368
AppellantMahabir Rai and ors.
RespondentRajender Rai and ors.
Excerpt:
- .....in that village. in other words, the mahal is not divided into thoks and pattis. in the column of 'serial number' there are however three serial numbers, viz. 1, 2 and 3, entered in the khewat and in the next column which is the column of 'amount of share and revenue together with cesses' a 5 anna 4 pie share is entered as against each serial number. further in each serial number the revenue and the cess of the 5 anna 4 pie share is entered separately. then in the column of cosharers the names of sharers who own the 5 anna 4 pie share of each serial number are entered. the share sold and pre-empted belonged to certain cosharers of serial number 3 and the plaintiffs are also cosharers in that serial number whereas the vendees, on the date of the sale, were cosharers in serial numbers 1.....
Judgment:

Iqbal Ahmad, J.

1. This is a vendees' appeal arising out of a pre-emption suit and the sole question that arises for consideration in the appeal is whether the plaintiffs had a preferential right of pre-emption as against the vendees. The zamindari share sold is in village and mahal Puraniyan. Both the plaintiffs and the vendees were cosharers in this village on the date of the sale sought to be pre-empted. The plaintiffs, however, claimed a preferential right of preemption on the allegation that the share sold was in a sub-division of the mahal in which the plaintiffs and the vendors were cosharers and the vendees were not. On this allegation the plaintiffs maintained that they came within class 2 of the pre-emptors prescribed by Section 12, Agra Pre-emption Act, (11 of 1922). Class 2 comprises, 'cosharers in the sub-division of the mahal in which the property is situated.' The vendees on the other hand alleged that Puraniyan was an undivided mahal and that there were no divisions or sub-divisions of that mahal and asserted that as they were also cosharers in the village the plaintiffs had not a preferential right of pre-emption as against them. In short the vendees' case was that they and the plaintiffs fell within class 5 of the pre-emptors recognized by Section 12. Class 5 comprises 'cosharers in the village.' The Court below relying on an unreported decision of Sulaiman C.J. in S.A. No. 1378 of Markandey Singh v. Harkaransingh, Second Appeal No. 1378 of 1932, Decided on 21st August 1934. gave effect to the plaintiffs' contention and decreed their suit. The learned Chief Justice in that case made the following observations:

But the plaintiff is a cosharer of khata khewat Nos. 3 and 13 and the property sold by the vendor lies in khata khewat Nos. 6 and 13, whereas the defendants by virtue of the deed of exchange have acquired shares in 'khata' khewat No. 14 only. The Court below has held that the plaintiff has no preference as regards khata khewat No. 13 because there is no specific area assigned to this khata in the khewat, although the revenue is separately assessed in each khata. This conclusion is obviously wrong because although no area is assigned, as it could not be, there is a separate khata khewat No. 13 which therefore is undoubtedly a separate and small sub-division of mahal.

2. The decision of the appeal depends on the answer to the question whether or not there are divisions and sub-divisions of mahal Puraniyan. A certified copy of the khewat of mahal Puraniyan is on the record and it shows that there are no thoks or pattis in that village. In other words, the mahal is not divided into thoks and pattis. In the column of 'Serial number' there are however three serial numbers, viz. 1, 2 and 3, entered in the khewat and in the next column which is the column of 'Amount of share and revenue together with cesses' a 5 anna 4 pie share is entered as against each serial number. Further in each serial number the revenue and the cess of the 5 anna 4 pie share is entered separately. Then in the column of cosharers the names of sharers who own the 5 anna 4 pie share of each serial number are entered. The share sold and pre-empted belonged to certain cosharers of serial number 3 and the plaintiffs are also cosharers in that serial number whereas the vendees, on the date of the sale, were cosharers in serial numbers 1 and 2 and not in serial number 3. The plaintiffs' case was that each serial number constituted a separate khata-khewat and a separate sub-division of the mahal. The vendees on the other hand urged that the mahal was a joint undivided mahal and the serial numbers were merely indicative of the extent of the share owned by the various sharers entered as against each serial number.

3. The patwari of the village was examined as a witness in the case and the pleaders of the parties made certain statements as regards the constitution of the village. From the patwari's evidence and the statements of the pleaders it is clear that there are in all 341 plots in the village and all these plots are jointly owned by all the sharers in all the three serial numbers and that the sir land of the cosharers of those numbers is joint. No plot or field is separately assigned to any particular serial number and there is no division in the village showing that any particular area of the village specially appertains to any particular serial number of the khewat. In short all the 341 plots of the village are joint and are owned by all the cosharers in all the serial numbers jointly.

4. In this state of the facts we find it impossible to hold that each serial number entered in the khewat constitutes a division or sub-division of the mahal. The phrase 'sub-division of the mahal' connotes the idea of division of some sort between the cosharers of the village or the mahal. It is impossible to have a sub-division without a division of a mahal or a village. The necessary result of the division or sub-division of a mahal is the allotment of specific area of the mahal to the cosharers of a particular division or sub-division. By division or sub-division of a mahal the joint coparcenary interest possessed by all the cosharers of the mahal is put an end to and in lieu of the joint interest possessed by them in the land of the village specific areas are allotted in severalty to the cosharers of a particular division or sub-division. In the present case, as already stated, all the cosharers of mahal Puraniyan jointly owned all the plots in the village. There is therefore no division or sub-division of that village. The entry of separate serial numbers in the khewat cannot therefore, by itself, be tantamount to a division or subdivision of the village. It is true that the revenue of each serial number is separately entered. Nevertheless the mahal being joint each and every cosharer is jointly responsible for the payment of that revenue irrespective of the fact that his name is not entered in a particular serial number.

5. For the reasons given above we with all respect dissent from the unreported decision noted above. Reliance was also placed by the respondents' counsel on the decision in Murli Tewari v. Mohammad Idris : AIR1930All312 . In that case it was held that a khata-khewat constitutes a sub-division of a mahal within the meaning of Section 12, Clause (2), Pre-emption Act. In that case it appeared from the khewat that there were separate khatas assigned to separate groups of cosharers which had specific areas fixed and on which Government revenue was separately assessed. In the case before us, as stated before, separate areas are not assigned to the separate serial numbers and therefore it cannot be held that there are separate khata-khewats constituting separate sub-divisions of the village. We therefore hold that the plaintiffs had not a preferential right of pre-emption as against the vendees. Accordingly, we allow this appeal, set aside the decree of the Court below and dismiss the plaintiffs' suit with costs here and below.


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