Iqbal Ahmad, J.
1. This and the connected First Appeal No. 381 of 1935 arise out of two rival pre-emption suits filed in the Court of the Civil Judge of Agra. Both the suits were disposed of by Mr. Raghunath Prasad Trivedi by one judgment and we also propose to decide the two appeals by one judgment. The sale deed sought to be pre-empted was executed on 9th October 1933, by one Shib Sahai in favour of Chiranji Lal and his four brothers. One of the brothers of Chiranji Lal is a man named Mangalia Ram. The following four items of property were conveyed by the sale deed: (1) Share in village Jagner Panwar, mahal Shib Sahai. (2) Share in village Bhawanpura, mahal Shib Sahai. (3) A decree for arrears of rent for Rs. 125; and (4) arrears of rent of the zamindari share sold with respect to 1342 Fasli.
2. The consideration entered in the sale deed was a sum of Rs. 8000. The sale deed was registered on 24th November 1933. On 14th November 1934, Bohra Chheda Lal, who is respondent in First Appeal No. 330, filed a suit for pre-emption (Suit No. 71 of 1934). He claimed pre-emption with respect to the first two items of properties conveyed by the sale deed. He based his right of pre-emption on the allegation that he was a cosharer in mahal Chheda Lal in both the villages sold and that the vendees were total strangers. He alleged that the real sale consideration was only Rs. 6000 and that out of that amount Rs. 500 was the consideration for the transfer of items 3 and 4 set out above. He accordingly prayed for a decree for pre-emption with respect to items 1 and 2 of the property sold on payment of Rs. 5500.
3. On 24th November 1934, Bohra Shib Singh and his two brothers who are appellants in First Appeal No. 381 of 1935 filed a rival pre-emption suit (Suit No. 72 of 1934). These plaintiffs claimed pre-emption only with respect to item 1 of the property conveyed by the sale deed. Their case was that they were co-sharers in mahal Sukh Lal and mahal Sukhdeo in village Jagner Brahmanan, and as such, had a preferential right of pre-emption as against the vendees who were strangers to the village. Their case as regards the sale consideration was that only Rs. 6000 was the real consideration and that out of that amount a sum of Rs. 625 ought to be deducted on account of the consideration of items 3 and 4. On these allegations they prayed for a decree for pre-emption with respect to item 1 on payment of proportionate price.
4. The vendees contested both the suits. They alleged that they had made the purchase in question after the refusal by the plaintiffs of both the suits to purchase the properties in dispute. In support of this contention the vendees adduced some oral evidence. That evidence was however not accepted by the learned Judge of the Court below with the result that this contention, of the vendees was overruled. We have read the evidence of the witnesses examined by the vendees on the point and we are satisfied that the conclusion arrived at by the learned Judge of the Court below is correct. Mangalia Ram, one of the vendees, stated that Chheda Lal and Shib Singh had actively taken interest in getting the price of the zamindari in suit settled and that both of them refused to purchase the property. Mangalia Ram was a highly interested witness and his evidence could not be relied upon. Two witnesses, named Pearey Lal and Shib Sahai, were produced by the vendees as regards this part of the case and their evidence has also for convincing reasons been rejected by the learned Judge of the Court below.
5. Both Chheda Lal and Shib Singh denied that they were asked to purchase the property. No notice as required by the Agra Pre-emption Act was, before the sale in favour of the vendees, given to the plaintiffs of either of the suits. The finding of the Court below that the plaintiffs of neither suit were estopped from maintaining the suits was therefore correct.
6. Before we mention the other controversial points in the case it would be convenient to deal with the question of sale consideration. The Court below held that the entire consideration, viz. Rs. 8000 entered in the sale deed was paid to the vendors and that out of this amount a sum of Rs. 131-4-0 was the consideration for the transfer of the rent decree and a sum of Rs. 301-5-6 was the consideration for the transfer of the arrears of rent for 1340 Fasli. It therefore concluded that the consideration of the first two items of properties sold was Rupees 7567-6-6. To this he added a sum of Rs. 200 on account of the costs of execution and registration of the sale deed which was incurred by the vendees and as a result he held that the consideration for the transfer of the two items of the zamindari property was Rs. 7767-6-6. No exception can be taken to this finding of the learned Judge which is amply borne out from the materials upon the record. The learned Judge also worked out the proportionate price of the two items of the zamindari property and the counsel for the parties are agreed that the proportionate price of item 1, viz. share in mahal Shib Sahai of village Jagner Panwar, is Rs. 5515-0-6 and the proportionate price attributable to the share in mahal Shib Sahai of village Bhawanpura is Rs. 2252-6-0. The learned Counsel for the vendees in the two appeals contended that in calculating the profits of the two items of the zamindari properties with a view to ascertain their respective values the learned Judge omitted to take into account the sawai income of mahal Shib Sahai of village Bhawanpura. We are unable to give effect to this contention. It may be that in some year there may have been some sawai income, but there was not sufficient material upon the record to justify the conclusion that in the year 1933, when the sale deed was executed, there was any sawai income in the mahal in question. The finding of the learned Judge on the question of consideration must therefore be accepted.
7. The main controversy in the Court below centered round the question whether or not the plaintiffs of either suit were entitled to a decree for pre-emption as regards item 1, viz. the share in mahal Shib Sahai of village Jagner Panwar. The vendees contested the plaintiff's claim as regards this item of property on two grounds. Firstly, they alleged that they themselves were cosharers in mahal Chheda Lal of village Jagner Panwar, and as such, the plaintiffs of either suit had not a preferential right as against them. Secondly they contended that a portion of the area of Jagner Panwar sold to them was part of town area and the plaintiff's had no right to pre-empt the same. They went on to allege that there was no custom of pre-emption applicable to the land within the ambit of the town area.
8. The Court below held that the vendees were mere petty proprietors in mahal Chheda Lal of village Jagner and were not cosharers in the same, and, as such, Bohra Chheda Lal who was a cosharer in village Jagner had a preferential right of pre-emption as regards item 1. The Court below also held that Chheda Lal being a co-sharer in village Bhawanpura had a right of pre-emption. As a result of these findings the Court below passed a decree in favour of Chheda Lal with respect to the first two items of zamindari property conveyed by the sale deed on payment of a sum of Rs. 7767-6-6 within a certain time. The suit filed by Shib Singh and his brothers was contested by the vendees inter alia on the ground that they (the plaintiffs) were not cosharers in village Jagner Panwar and that they were cosharers in a totally different village. Shib Singh and his brothers on the other hand maintained that village Jagner Brahmanan was a part of village Jagner Panwar. The Court below held that village Jagner Brahmanan was a village different from village Jagner Panwar and on this ground dismissed the claim of Shib Singh and his brothers with the result that First Appeal No. 381 of 1935 has been filed by them.
9. At the hearing of these appeals it was stated that Chheda Lal after depositing the purchase money in Court and taking possession over items 1 and 2 of the properties, sold the same to Shib Singh during the pendency of this appeal. Chheda Lal is therefore no longer interested in opposing First Appeal No. 330 that has been filed by the vendees. Shib Singh has however contested the appeal filed by the vendees. In order to decide the question whether the vendees are or are not cosharers in mahal Chheda Lal of village Jagner Panwar it is necessary to state certain facts and in particular to briefly set out the constitution of the village as disclosed by documentary evidence. It is admitted that on 7th May 1928, one Mt. Sundar executed a sale deed with respect to a plot of land measuring 2 bighas, 15 biswas in favour of Ram Lal, the father of the vendees. This plot was then situated in village Jagner Panwar, mahal Guman Kunwar. In the sale deed Mt. Sundar described herself as the owner and haqqivatdar of the plot and it was mentioned in the sale deed that the plot was assessed to a revenue of Rs. 2.
10. It is also common ground that on 10th April 1930, one Lala Ram for self and as guardian of Shyama minor sold an area of 1 bigha, 8 biswas in mahal Guman Kunwar to the vendees. In the sale deed the vendors described themselves as owners and haqqivatdars of the land sold.
11. The vendors of both the sale deeds were mentioned in the revenue papers as malik farottar, i.e. under-proprietors. On the basis of these purchases, the vendees maintained that they had become cosharers in village Jagner, and, as such, the plaintiffs of the two suits had not a preferential right of pre-emption against them. The learned Judge of the Court below, as already stated, held that the vendees by these purchases became owners of specific plots and their position was that of petty proprietors as defined by the Agra Pre-emption Act. The earliest document that is upon the record with respect to village Jagner Panwar is the wajibularz of 1879. This wajibularz was prepared at a time when the Land Revenue Act of 1873(Act 19 of 1873) was in force. By the rules that were framed by the Board of Revenue under the Act the wajibularzes to be prepared by Settlement Officers were to consist of four chapters. In chap. 1 the constitution of the mahal and tenure had to be mentioned. Chap. 2 was to deal with 'the rights of sharers among themselves, founded on a custom or agreement.' Chap. 3 was to be reserved for entries relating to the 'rights of subordinate holders.' Chap. 4 was with respect to the 'rights of tenants.' Appropriate sub-headings under each chapter were provided for by the rules and the wajibularz of 1879 that is before us faithfully follows the rules framed by the Board of Revenue as regards the preparation of wajibularz. In para. 1 of chap. 1 of this wajibularz it is mentioned that 'this village is in the form of imperfect 'pattidari' tenure divided into two 'pattis'...' Para. 2 of chap. 1 prescribes about the 'mode of realization and payment of Government revenue,' and it is stated in this paragraph that the Government revenue is to be deposited in the Government Treasury in certain instalments 'through the lambardar.' Para. 3 deals with the custom regarding the appointment of patwari and the following provision is made in that paragraph:.A new patwari shall be appointed with the consent of the zamindars of the circle, and in case of the difference of opinion among them, the appointment shall be made according to the opinion of those who have larger shares of property....
12. Paragraph 2, chap. 2 makes provision about the appointment of lambardars and lays down inter alia that
a new lambardar shall be appointed with the consent of the zamindars and in case of difference of opinion he will be appointed according to the opinion of those who have a large share of the property....
13. In ch. 3, para. 2 deals with 'persons in possession of resumed 'muafi' land.' A long list of the resumed muafi holders together with the area of the land in their possession is given under that paragraph, and it is common ground that the two purchases made of the specific plots of land by the vendees in the years 1928 and 1930 were from some resumed maufi holders specified in this list. It appears that till the year 1898 village Jagner consisted of two mohals, viz. mohal Panwar and mohal Brahmanan. In the year 1898 mohal Panwar was further subdivided into six mohals, and one of the newly formed mohals was mohal Guman Kunwar in which the plots purchased by the vendees were situated. The proceedings for partition are printed at p. 36 of First Appeal No. 330. The khewat of mohal Guman Kunwar for the year 1912 is upon the record. A reference to this khewat shows that village Jagner was a bigha daham village and in the khewat the area in possession of various proprietors was specified. The khalsa land in possession of Mt. Guman Kunwar was recorded as 1023 bighas, 17 biswas, 10 biswansis and the revenue and the cesses payable with respect to this area were entered in the column of revenue and cesses. Thereafter the area in possession of the various inferior proprietors was detailed in the khewat and so were the revenue and cesses payable by the inferior proprietors. After these entries the total revenue in respect of the mohal was entered at the foot of the khewat. It is clear that the purchases made by the vendees in the years 1928 and 1930 were from two of the persons entered as inferior proprietors in this khewat.
14. Lastly, we find that in the year 1930 there were again fresh proceedings for partition of mohal Guman Kunwar and on this occasion mohal Guman Kunwar was sub-divided into two mohals called mohal Shib Sahai and mohal Chheda Lal. It is to be noted that the share in Jagner sought to be pre-empted is situated in mohal Shib Sahai and Chheda Lal, plaintiff, owns a share in mohal Chheda Lal and the specific plots purchased by the vendees in 1928 and 1930 are also situated in the same mohal. The answer to the question whether or not the vendees have become cosharers in mohal Chheda Lal by virtue of the purchases made by them depends on the answer to the question whether or not they can be regarded as cosharers as defined by the Agra Pre-emption Act. Section 4(1) of the Act provides that 'cosharer' means
any person, other than a petty proprietor entitled as proprietor to any share or part in a mohal or village....
15. 'Petty proprietor' is defined by Section 4(7) as meaning
the proprietor of a specific plot of land in a mohal, who as such is not entitled to any interest in the joint lands of the mohal, or to take part in the administration of its affairs.
16. The fact that the vendees are proprietors of the specific plots of land in mohal Chheda Lal admits of no doubt and they must, therefore be taken to be 'petty proprietors' unless they are entitled to any interest in the joint lands of the mohal or are entitled to take part in the administration of the affairs of the mohal. The evidence in the case shows that the vendees fulfilled both the conditions just set out. One of the witnesses examined by Shib Singh, plaintiff, was Sri Chand, the patwari of village Jagner Panwar. He deposed that
there is a small stone hill in village Jagner Panwar. Chiranji Lal also takes stone from the same. All proprietors of the inferior interest as well as the tenants of the village take stones from the hill. If the inferior interest holder has any waste land or tank etc., in his 'patti' he uses it just as the full cosharers of a patti use theirs....
17. It appears from this evidence that the vendees as owners of the specific plots purchased by them took stones from the hill which was joint undivided property in the village, and thus there is no escape from the conclusion that they had an interest in the joint lands of the mohal. It is to be noted that this admission was made by one of the plaintiff's witnesses. Mangalia Ram vendee also deposed that
all the vendees have share in the shamlati items, i.e. tanks, waste land, etc., of Jagner Panwar. We take stones from the hills of this village as zamindars.
18. In cross-examination he stated:
I have a share in hills, rivers, weighment dues of the village. I have share in the waste land and abadi of the village.
19. To the same effect is the evidence of another witness produced by the vendees named Shib Sahai. Chheda Lal, plaintiff, in his evidence made no statement on the point contrary to the statement of Mangalia Ram and Shib Sahai. The evidence on the point is all the one way and is in favour of the vendees and shows that the owners of specific plots of resumed muafi have an interest in the joint lands of the mahal. That they also have a voice in the administration of the affairs of the mahal is put beyond doubt by the documentary evidence in the case. But, before we refer to that evidence, we propose to deal with the question as to what does the phrase 'administration of the affairs of the mahal' connote. A lambardar is appointed in each mahal and he is in certain respects the agent of all the cosharers of the mahal. He is subject to the custom governing a particular mahal, charged with the duty of looking after matters connected with the administration of the mahal. Similarly, a patwari is charged with the duty of maintaining the record of rights with respect to the mahal of which he is the patwari. A lambardar and a patwari, therefore, are concerned with the affairs of a mahal. It may, therefore, be safely laid down that such proprietors of a mahal who have a voice in the appointment of a lambardar or of a patwari do take part in the administration of the affairs of the mahal and in the present case we find from the evidence that the vendees had a voice in the appointment of the patwari and the lambardar of mahal Chheda Lal.
20. In the application that was filed in the year 1897 for partition of mahal Panwar all the owners of the resumed muafi plots were arrayed as opposite parties and were described as cosharers in village Jagner. Similarly in the partition suit of 1930 the present vendees, who had by that time become owners of specific plots of resumed muafi in mahal Chheda Lal, and the other owners of resumed muafi plots were arrayed as parties and described as cosharers. This shows that no differentiation was made by the cosharers of the village as between owners of khalsa land and owners of resumed muafi plots and that both were put on the same footing and treated as cosharers in the village. The provision in the wazibularz of 1879 about the appointment of patwari and lambardar does give to the owners of resumed muafi plots a voice in their appointment. It is worthy of note that the relevant paragraphs in the wazibularz give the right of nomination of patwari and lambardar not to cosharers (Hissadars) but to zamindars of the village. The fact that the owner of a resumed muafi plot is a zamindar admits of no doubt. In short, the resumed muafi holders are entitled to take part in the administration of the affairs of the mohal.
21. Lastly we find from the khewat of 1930 that in 'mohal non-applicant for partition' which was one of the mohals formed out of the original mohal Panwar, one Gokul Prasad who was the owner of a resumed muafi plot and was described in the khewat as inferior proprietor, was appointed lambardar of the mohal. A lambardar is defined by Sec. 4(3), Land Revenue Act (Act 3 of 1901) as meaning 'a cosharer of a mohal appointed under this Act to represent all or any of the cosharers in that mohal.' The appointment of Gokul Prasad as lambardar clearly shows that he was regarded as a cosharer in the mohal for the simple reason that none but a cosharer can be appointed a lambardar. As against all this documentary evidence there is practically no evidence worth the name, on behalf of the plaintiff and the conclusion is, therefore, irresistible that the 'inferior proprietors' were entitled to take part in the administration of the affairs of the mohal. They cannot, therefore, be regarded 'petty proprietors' as defined by the Agra Pre-emption Act and they must, therefore, be held to be cosharers as defined by the Act. That being so, the vendees were also cosharers in village Jagner and Chheda Lal had therefore no right of pre-emption as against the vendees. On this very ground the claim of Shib Singh and his brothers as against the vendees must also fail and their claim was, therefore, rightly dismissed by the Court below.
22. In the view that we take, it is unnecessary to consider the plea raised by the vendees based on the fact of the inclusion of a portion of Jagner in town area.
23. The result is that First Appeal No. 330 of 1935 must succeed as regards the share in village Jagner. We accordingly allow First Appeal No. 330 to this extent that we dismiss the plaintiff's claim as regards the share in village Jagner Panwar mohal Shib Sahai. The decree passed by the Court below in favour of Chheda Lal as regards the share in village Bhawanpura shall stand. The plaintiff of First Appeal No. 330 will be liable to pay on account of Bhawanpura share to the vendees a sum of Rs. 2252-6-0 and for this we allow two months from today's date. In default of payment of the amount within the time allowed the suit shall stand dismissed. As the victory has been divided we direct the parties in First Appeal No. 330 of 1935 to bear their own costs in both the Courts. We dismiss First Appeal No. 381 of 1935 with costs.