1. Second appeal No. 112 of 1927 and Second appeal No. 615 of 1927 are defendants' appeals arising out of two pre-emption suits in respect of the same sale deed dated 7th July 1925, relating to certain plots of resumed, lands in khewat Rai Naterpal Singh, Kasha Jalesar. It is admitted that some of the plots are situated within the municipal limits and others are outside those limits. These plots are in three khewats, and in the revenue papers are shown under the heading haqiat mutafarriqa (miscellaneous property), and are distinct from khewat 1 which represents the entire 20 biswas and is shown as the khalsa, share. The learned Additional District Judge has found that
the said khewats stand by themselves, and the owners thereof are owners of specific plots, and have no concern with the administration of the village There is no doubt whatever that they must be, termed as petty proprietors as defined in the Pre-emption Act,
2. The position than is that neither the plaintiffs nor the vendors nor the defendant vendees wore cosharers in the 20 biswas khalsa land. They all are petty proprietors who own specific plots of lands in the miscellaneous khewats. A reference to khewat 61 shows that the plaintiffs, the vendors and the vendees are all owners of specific plots in this khewat and stand on the same footing. The same can be said as regards khewat 35. No copy of khewat 126 is on the record, but the statement of the defendants' vakil is to the effect that the plaintiffs are co-sharers with the vendors in that khewat, whereas the defendants are co-sharers in another khewat 20. It is, however, an admitted fact that neither the plaintiffs nor the defendants are coparceners in the same specific plots which have been sold by the vendors.
3. Taking the case of the plots which are situated within the municipal limits, it is quite clear from Section 1, Sub-clause (3) of the Act that the new Act does not apply to any area within the limits of any municipality. The case so far as these plots are concerned is therefore governed by a local custom, provided it is proved to exist. The plaintiffs rely upon a wajibularz of the year 1283 Fasli, which does record a custom of preemption, and there is no evidence to the contrary. It may therefore be presumed to be a correct record of custom. The language of the wajibularz is as follows:
If any co-sharer (hissadar) or owner of resumed land (malik munzabta) wants to transfer his property by means of sale or mortgage he should sell it first to his real brothers and nephews and then to his cousins who are partners in the property (sharik haqiat) then cosharers of the patti (hissadar digar patti).
4. It is clear to us from the language of this entry that a right of pre-emption exists in favour of nearest relations, then near relations who are coparceners in the property, and then to co-sharers of the patti and then co-sharers of other pattis. The entry makes a clear distinction between a co-sharer and a mere owner of resumed lands. No right of pre-emption is given bo owners of resumed lands who are not partners in the property. The phrase 'hissadar patti' in this entry obviously moans co-sharers as distinct from petty proprietors. We are therefore of opinion that the evidence is insufficient to prove a custom of pre-emption in favour of petty proprietors who are not coparceners in the property. The plaintiff's claim with regard to the plots situated within the municipal limits ought therefore to have been dismissed.
5. As regards the plots situated outside the municipal limits, the Act undoubtedly applies. There being a record in the wajibularz a custom of preemption is deemed to exist, and the right is determined by Section 12 of the Act. The lower appellate Court is of opinion that because these separate miscellaneous plots are grouped together in the revenue papers under one miscellaneous khewat, therefore any petty proprietor in that khewat has a right of pre-emption when another petty proprietor in that khewat sells his interest. But when it is borne in mind that these petty proprietors own various plots separately and are not partners in those plots, that view cannot be accepted if Sections 11 and 12 are read together. Under Clause 1, Section 12 by the phrase
where the interest is petty proprietary interest, coparceners in that interest,
obviously coparceners in the interest sold are meant and not similar petty proprietors. This was the view expressed in Ganeshi Lal v. Chob Singh : AIR1929All755 by a Bench of this Court in the following words:
Under Section 12 of the Act a petty proprietor has preference if he is a coparcener in the proprietary interest sold. In such cases he is given preference over even co-sharers. But he must be a coparcener in the very interest which has been sold, and not merely a petty proprietor of any other lands.
6. In our opinion that the present plaintiffs who own specific plots of lands separate from those owned by the vendors are not coparceners in the interest sold and have therefore no right of preemption. It is not disputed before us that the plaintiffs are not co-sharers in the khalsa khewat, and therefore do not come within the other four classes. The result therefore is that the plaintiffs have no right of pre-emption at all.
7. We accordingly allow these two appeals, set aside the decrees of the Courts below and dismiss the plaintiffs' suits with regard to all the plots with costs in all Courts including in this court-fees on the higher scale.