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B. Jairaj Singh and ors. Vs. B. Har NaraIn Singh and anr. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1940All414
AppellantB. Jairaj Singh and ors.
RespondentB. Har NaraIn Singh and anr.
Excerpt:
- - in view of that finding the cross-objection must fail and is dismissed with costs......september, 1908. it was held thatthough a partition takes effect from the 1st july following the date of confirmation by the collector yet the owners of a newly partitioned mahal may sue for ejectment under section 63, agra pre-emption act, as land-holders immediately after the date of the collector's order confirming the partition if that order is passed before october 1st.4. this decision has no bearing on the case before me. in that case the right of a cosharer to file a suit for ejectment of a tenant after the confirmation of partition under section 131, was under consideration. no such question arises in the present case. as already stated, the question for decision in the present appeal is the effect of the confirmation of the partition proceeding under section 114. even after.....
Judgment:

Iqbal Ahmad, J.

1. This is a vendees' appeal arising out of a pre-emption suit. The sale sought to be pre-empted was effected on 22nd August 1936. The price entered in the sale deed was Rs. 500. On the date of the sale the plaintiff and the vendor were cosharers in the same patti while the vendees were cosharers in another patti. The plaintiff therefore claimed a preferential right of pre-emption. He also alleged that the real sale consideration was only Rs. 200 and that an inflated amount of consideration was entered in the sale deed with a view to defeat the right of pre-emption. The vendees contested the suit. They denied that the plaintiff had a preferential right of pre-emption and maintained that the consideration entered in the sale deed was correct. On the question of sale consideration the trial Court accepted the plaintiff's case and held that Rs. 200 was the true consideration. The lower Appellate Court on the other hand held that the amount entered in the sale deed, viz. Rs. 500, was the real sale consideration. A cross-objection has been filed by the plaintiff with respect to this finding of the lower Appellate Court. The cross-objection is without substance. The finding of the lower Appellate Court on the question of consideration is a finding of fact and, being based on the evidence in the case, is binding on me in second appeal. In view of that finding the cross-objection must fail and is dismissed with costs.

2. Both the Courts below held that the plaintiff had a preferential right of pre-emption and decreed the suit for pre-emption. By the present appeal this decision of the Courts below is assailed. It appears that the vendor had filed an application for partition in the Revenue Court and, either before the institution of the suit giving rise to the present appeal or during the pendency of the suit in the trial Court, the partition proceeding was drawn up and confirmed by the Collector in accordance with the provisions of Section 114, Land Revenue Act (3 of 1901). In accordance with the partition proceeding, the share of the plaintiff was to be formed into a patti distinct from the patti in which the pre-empted share was to be allotted. On the basis of this partition proceeding the vendees contended that the plaintiff had no preferential right of pre-emption. They maintained that, as in accordance with the partition proceeding the pre-empted share was to be in a patti other than the patti in which the plaintiff's share was to be included, the plaintiff had no preferential right of pre-emption, as they (the vendees) themselves were sharers in one of the pattis in the village. This contention of the vendees was overruled by the Courts below and in my judgment rightly.

3. It is common ground that notwithstanding the confirmation of the partition proceeding the partition was not completed till the date of the decision of the suit by the trial Court. In accordance with the provisions of Section 19, Agra Pre-emption Act (11 of 1922), a pre-emptor is 'entitled to a decree if his right of pre-emption subsists till the date of the decree by the trial Court. It follows that the loss of the right of pre-emption after the date of the decree of the trial Court is immaterial. All that is done by the partition proceeding is to declare the nature and extent of the interests of the cosharers applying for partition and of those cosharers who are made opposite parties in the application for partition. The confirmation of the partition proceeding does not amount to an actual partition by the revenue Court. After the confirmation of the partition proceedings partition has to be effected in accordance with those proceedings and is not completed until the Collector has passed an order under Section 131 confirming the partition. It is not disputed that in the present case no order for confirmation of partition under Section 131 was passed till the date of the decision by the trial Court. It follows that, though the partition proceeding had been brought to an end by the Collector's order of confirmation, partition in fact was not effected till the date of the decision by the trial Court and the plaintiff, as a cosharer in the same patti in which the pre-empted property was situated, had therefore, a preferential right of pre-emption as against the vendees who were cosharers in another patti. The view that I take is in consonance with the decision of this Court in Ishwar Dat v. Mahesh Dat : AIR1925All747 . Reliance was placed by the appellants' counsel on the Selected Decisions of the Board of Revenue, Gopinath v. Abdul Aziz, Sel. Dec. B.R. No. 10 of 1910. In that case a partition was confirmed by the Collector on 5th September 1908, and a suit for ejectment was brought in respect of fields allotted to a particular mahal on 15th September, 1908. It was held that

though a partition takes effect from the 1st July following the date of confirmation by the Collector yet the owners of a newly partitioned mahal may sue for ejectment under Section 63, Agra Pre-emption Act, as land-holders immediately after the date of the Collector's order confirming the partition if that order is passed before October 1st.

4. This decision has no bearing on the case before me. In that case the right of a cosharer to file a suit for ejectment of a tenant after the confirmation of partition under Section 131, was under consideration. No such question arises in the present case. As already stated, the question for decision in the present appeal is the effect of the confirmation of the partition proceeding under Section 114. Even after the confirmation of partition proceeding, it is open to the applicants for partition to withdraw their application. In such a case the partition proceeding though confirmed will become a waste paper. For the reasons given above I dismiss this appeal with costs. Leave to appeal under the Letters Patent is refused.


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