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Masihullah Vs. Dakhini DIn and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in6Ind.Cas.169
AppellantMasihullah
RespondentDakhini DIn and anr.
Excerpt:
pre-emption - wajih-ul-arz--construction--shurkai patti--owner of isolated plot assessed with government revenue. - .....vendee respondent in this appeal, ten years previous to this suit, acquired by exchange a small plot of land in this patti. in defence to this suit for pre-emption, the vendee contended that by reason of his possession of this plot in patti ekramuddin, he had an equal right with the plaintiff -pre-emptor to purchase the property in suit. the wajib-ul-arz provides that first, mhurkai ekjaddi and secondly shurjcai patti shall have a preferential right to pre-empt. it is admitted that neither the pre-emptor nor the vendee belongs to the first category. the question for decision is whether they, both come under the second category or only the plaintiff. the court below held that the vendee is a surkai patti, and, therefore, he stands on an equal footing with the preemptor. in second.....
Judgment:

Griffin, J.

1. This is a plaintiff's appeal arising out of a suit for pre emption. The plaintiff is a co-sharer in patti Ekramuddin to which the property sold appertains. The vendee respondent in this appeal, ten years previous to this suit, acquired by exchange a small plot of land in this patti. In defence to this suit for pre-emption, the vendee contended that by reason of his possession of this plot in patti Ekramuddin, he had an equal right with the plaintiff -pre-emptor to purchase the property in suit. The wajib-ul-arz provides that first, Mhurkai ekjaddi and secondly ShurJcai patti shall have a preferential right to pre-empt. It is admitted that neither the pre-emptor nor the vendee belongs to the first category. The question for decision is whether they, both come under the second category or only the plaintiff. The Court below held that the vendee is a Surkai Patti, and, therefore, he stands on an equal footing with the preemptor. In second appeal, it is contended that a purchase of an isolated plot of land in a mahal is not sufficient to confer upon the purchaser the rights and privileges of a co-sharer in a mahal. I have been referred to various rulings of this Court. The first is Raghu Nath Singh v. Gopal Singh A.W.N. (1886) 144. In that case it was found that the transfer was of a portion of the mahal so as to make the purchaser incur all the liabilities which are attached to the proprietary holding of the mahal or a patti. The appeal was decided on this finding. The rulings in Muhammad Ali v. Hukam Kunwar A.W.N. (1905) 264 : 2 A.L.J. 788 and Atma Nand v. Brahm Narain 4 A.L.J. 541 : A.W.N. (1907) 239 ware also cited. In both those cases, the person who claimed to be a co-sharer was the purchaser of an isolated plot of grove land which did not pay Government revenue. In Jodhi Singh v. Bhola Nath A.W.N. (1904) 118 as far as I can gather from the text of the report and from the rulings quoted therein, the case appears to have been decided on the ground that the custom of pre-emption obtained only among co-sharers in the mahal and that the sale of a share in haqiat mutafarika did not create any right of pre-emption in favour of persons who held shares in such haqiyat mutaffarika. The rulings to the contrary are to be found in Dakhini Din v. Rahim-un-nissa 16 A. 412 and Safdar Ali v. Dost Mohammad 12 A. 426. In the former case, stress was laid on the liability for Government Revenue of the person holding an isolated plot of land. The plot of land acquired by the vendee respondent is a portion of a cultivatory holding and there being no evidence to the contrary, it may be assumed that it was included in the village land assessed to revenue. Under the Revenue Act Section 142, all the proprietors are jointly and severally liable for Government revenue. The words of the section are wide enough to make owners of specific areas liable for arrears of revenue in respect of any portion of a mahal. I must, therefore, hold that the vendee came under the same category as the plaintiff, namely, Sharik-i-patti, and that the plaintiff's suit was rightly dismissed by the Court below. The appeal is dismissed with costs including fees in this Court on higher scale.


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