Mushtaq Ahmad, J.
1. This is a defendants appeal arising out of a suit for pre-emption by three persons in respect of a sale-deed dated 21st October 1942, executed by Bakhtawar, defendant 3, in respect of a certain zamindari share in khewat No. l of village Goila, district Muzaffarnagar in favour of Balwant and Ganga Ram, defendants l and 2 respectively, who are the appellants in this case.
2. Prior to the above sale deed, the vendor Bakhtawar had sold to the three plaintiffs on 18th October 1938, plot No. 1349 measuring 1 bigha and 14 biswas out of a larger area. Again, on 18th February 1939 Bakhtawar had by a deed of exchange transferred to Jagram, one of the plaintiffs, a cerain undivided share in khewat No. 1.
3. As regards this last transfer, the trial Court held that Jagram plaintiff was the absolute owner of the property covered thereby and that the other plaintiffs had not acquired any interest therein. The lower appellate Court left this question untouched.
4. The trial Court, holding further that the plaintiffs had merely become 'petty proprietors' under the sale deed of 18th October 1938, and could not claim the right of pre-emption as co-sharers by virtue of that deed in respect of the property sold by defendant 3 to defendants I and 2 on 21st October 1942, dismissed the suit. The lower appellate Court, taking a contrary view on this question, decreed the suit, and the present appeal is directed against the latter decree.
5. It may be mentioned that, after the sale-deed of 18th October 1938, the area sold by Bakhtawar to the plaintiffs as plot No. 1349 was constituted into a separate khewat known as khewat No. 1/1 although it was not assessed to a separate revenue, both the khewats no. 1 and No. 1/1 still carrying a joint revenue. We shall consider the effect of this particular feature of the case as bearing on the plaintiffs' right of pre-emption in this case later.
6. The main controversy before the Courts below and also before us in this appeal was in regard to the status acquired by the plaintiffs under the sale, deed of 18th October 1938, namely, whether the plaintiffs had become merely petty proprietors in the village by virtue of that deed or could be regarded as co-sharers, and thus entitled to pre-empt.
7. This question raises a point round which a tremendous volume of case-law, sometimes apparently contradictory, has clustered in this Court, and naturally each party has attempted to emphasise. the decisions favouring its own view-point. The lower appellate Court also went through the case-law in detail and finally came to the conclusion we have already mentioned.
8. While we are not in agreement with the view expressed by the lower appellate Court on every point which it discussed in its judgment, we are in agreement with the final conclusion at which it arrived in decreeing the suit.
9. When entering into this question ourselves, we must quote at the outset the definitions of the word 'co-sharer in Section 4 (1) and of the term 'petty proprietor' in Section 4 (7), Agra Pre-emption Act. 'Co-sharer' means
any person, other than a petty proprietor, entitled as proprietor to any share or part in a mahal or village whether his name is or is not recorded in the Register of Proprietors.
'Petty proprietor' means
the proprietor of a specified plot of land in a mahal, who, as such, is not entitled to any interest in the joint lands of the mahal, or to take part in the administration of its affairs.
The above definition of the word 'co-sharer' obviously shows that a 'petty proprietor' is not as such a co-sharer, nor is he as such entitled to any interest in the joint lands of the mahal or to take part in the administration of its affairs. This means that in the case of a person owning a specific plot in the mahal, something else has to be shown which would confer upon him the status of a co-sharer.
10. This involves two distinct questions : (1) Who has to show this, the plaintiff-pre-emptor or the defendant-vendee, and (2) What should be proved to establish that such a person is entitled to an interest in the joint lands of the mahal or to take part in the administration of its affairs.
11. We propose to examine these questions separately. The lower appellate Court seems to have imagined that there was initially a certain presumption in favour of the pre-emptor who had acquired title in a specific plot that he was also a co-sharer by virtue of that right, and that if. was for the defendant-vendee to show that he had no such right and was, thus not a co-sharer within the meaning of the Agra Pre-emption Act, The learned Judge after quoting the definition of 'co-sharer' and 'petty proprietor' observed as follows:
It would be clear from these definitions that a Co-sharer in a mahal or in a village, as the plaintiffs in the present case are, would be co-sharer within the meaning of the definition given above unless it can he held that by virtue of the transfer of the share of Khewat No. 1 to them, they have become proprietors only of a specific plot without being entitled to take part in the administration of the affairs of the village.
He later on remarked that:
I have seen almost every available case on the point, and I am of opinion that the position of the plaintiffs is certainly such that they cannot possibly be deemed to have lost their right of participation in the administration of the village.
12. The above passages unmistakably show that the learned Judge thought that it was for someone other than the plaintiff to prove that the plaintiff-pre-emptor, merely by purchasing a specific plot, had become only a petty proprietor and was not a co-sharer. Indeed, the word 'lost' in the second passage quoted by us clearly suggests that in his view such a pre-emptor did initially possess the right of participation in the administration of the village and that unless someone proved that he (plaintiff-pre-emptor) had lost that right his right could not be denied.
13. In the case of Sheo Balah Ram v. Mathura Prasad 0049/1929 : AIR1930All117 , there are certain observations in the judgment of Sulaiman, J. sitting with Sen J., which undoubtedly seem to lend support to the view of the learned Additional Civil Judge. These may be briefly quoted:
The definition of a petty proprietor given in Section 4 (7), Agra Pre-emption Act, makes it quite clear that the mere fact that a person is the proprietor of a specific plot of land does not make him a petty proprietor. It should further appear that he is not entitled to such an interest in the joint lands of the mahals or to take part in the administration of its affairs.
His Lordship also remarked in the same case that:
The deed does not say that the done would not be entitled to take part in the administration of the affairs of the mahal.
While we are in entire agreement with the first part of the passage first quoted, we find it difficult to endorse the suggestion, if one is implied in the second part, that someone other than the plaintiff-pre-emptor should prove that the plaintiff is not entitled to any interest in the joint lands of the mahal or to take part in the administration of its affairs. Similarly, if by the second passage quoted, it was intended to imply that, unless the deed of transfer relating to a specific plot also stated that the pre-emptor would not be entailed to take part in the administration of the affairs of the mahal, he would be presumed to have such a right. We shall have great difficulty in endorsing that view. We would rather think that unless such a deed mentioned such a right being vested in the pre-emptor, he could not merely by purchasing a specific plot be deemed to have acquired a right to claim interest in the administration of the mahal, although it would be open to him, even in that case to show that he had the right, inspite of the same not being mentioned in the deed in his favour.
14. This position seems to be amply supported by the judgment of their Lordships of the privy Council in Ramjimal v. Riaz-ud-din . Their Lordships in that case observed that:
The sale-deed in favour of the plaintiff makes it clear that he acquired only certain specified fields, the total area of which amounts to 38 bighas and 14 biswas.
They then remarked that while the trial Court in that case had found that the plaintiff did not take part in the administration of the affairs of the mahal, the learned Judges of the High Court observed that;
There is no evidence to show that he has not any right to take part in the administration of the affairs of the mahal.
Although they at the same time held that:
the burden of proving that he is a co-sharer and that he has a right to take part in the administration of the mahal undoubtedly lies on the plaintiff who cornea to Court.
After quoting the above passages from the judgment of the High Court, their Lordships went on to observe that there was 'not a scrap of evidence to discharge that onus.' The position was further clarified by the observation that 'it is clear that, if a person is a petty proprietor, he cannot be a cosharer' and that:
Now, the plaintiff is the proprietor of a specific plot of land, and as such he is not entitled to any interest in the joint lands of the mahal.
or 'to take part in the administration of its affairs.'
15. The view that in such a case the onus is always on the plaintiff to establish that, although he is only the owner of a specific plot, he is not a petty proprietor within the meaning of the Pre-emption Act, but is a co-sharer by virtue of his being entitled to participate in the administration of the affairs of the mahal or the village, is fully borne out by the cases of Bajrangilal v. Shaharyar Khan : AIR1940All83 ; Amin Chand v. Yad Ram : AIR1926All537 and Lalta Prasad v. Chunni Singh : AIR1929All385 .
16. On a consideration, therefore, of the definition of the word 'co-sharer' and the term 'petty proprietor' in the Agra Pre-emption Act and the cases cited above, we are distinctly of the opinion that there is no presumption that a person acquiring title in a specific plot in a mahal also acquires an interest in the joint lands of the mahal or in the administration of its affairs, nor does the absence of an exclusion clause in the deed that he has not acquired such a right necessarily suggest that he has acquired it so as to cast a burden on the vendee-defendant to prove that the plaintiff-pre-emptor has not acquired the same. We, therefore, think that the learned Additional Civil Judge was not right in holding that there was no burden on the plaintiff-pre-emptor in such a case, and that it is for the defendant-vendee to establish that the former was not a co-sharer, and, therefore, not entitled to pre-empt.
17. On the second question formulated by us above, there can be no doubt that if a proprietor is found to have a voice in the appointment of the lambardar or the patwari in the village, he is deemed entitled to take part in the administration of its affairs. This was held in Chiranjilal v. Chhedalal : AIR1940All8 . The plaintiffs in the present case, however, claim a right in the administration of the affairs of the mahal on the following grounds: (1) That the land revenue payable by the original khewat no. 1 in the separated khewat no. l/l was still joint, and (2) that the khewat No. l/l still continued to be a part of the total 20 biswas mahal, and was not treated as a khewat outside those 20 biswas.
18. They, no doubt, also based their right on -the absence of an exclusion clause in the sale deed of 18th October 1938, but we have already dealt with the effect of the absence of such a clause and held that such a circumstance would not imply any right in the plaintiffs to claim an interest in the management of the mahal. We, therefore, proceed now to consider the meaning and legal implications of the first two circumstances just noted.
19. It is true that the circumstance of a joint liability in the matter of payment of land revenue was not mentioned by the Legislature as an ingredient of the definition of 'cosharer' in Section 4 (1), Pre-emption Act. Nonetheless, there is great preponderance of authority in favour of the view that such a circumstance does confer on the person having a joint liability with others to pay the land revenue of the mahal, a status, by virtue of which he can claim an interest in the administration of its affairs and is, on that account, en-titled to pre-empt as a cosharer. In Sheo Balak Ram v. Mathura Prasad 0049/1929 : AIR1930All117 already cited by us, the defendant-vendee, who had acquired a specific plot in the mahal with a joint liability to pay the Government revenue for the entire 16 annas, no revenue being assessed separately on his plot, was held entitled to resist a claim of pre-emption, Again, in Prahlad Prasad v. Mi. Chameli Kuer : AIR1937All529 it was remarked by Sulaiman C.J. sitting with Benney J. that
in order to see whether there is a right to take part in the administration of the affairs of the mahal it may be necessary to find out whether there is a joint liability for the payment of the revenue of the mahal.
The same view was taken by Thorn C.J. and Ganga Nath J. in Banwari Ram v. Muhammad Yar Khan : AIR1941All49 , namely, that
for the purposes of the Agra Pre-emption Act, the person who is liable in respect of a land revenue is regarded as a cosharer.
In Mohammad Qamar Shah Khan v. Mohammad Salamat Ali Khan : AIR1933All407 , Thom and Rachhpal Singh JJ. hold that under the Tenancy Act, the joint liability of a person to pay land revenue made him a cosharer in the mahal. Prima facie, there seems so be no reason to conceive a distinction between a cosharer for the purposes of this Act and a co-sharer under the Agra Pre-emption Act, although the circumstance of such liability is not mentioned as an element of the definition of 'coaharer' in Section 4 (1), Agra Pre-emption Act. The question really being whether such liability confers upon the pre-emptor any right to claim an interest in the administration of the mahal, so us to make him a cosharer entitled to pre-empt, we do not see any ground for a discrimination between a person with such liability claiming pre-emption and another with a similar liability claiming the rights and privileges of a cosharer under the Tenancy law, or the law relating to and revenue.
20. It will be noted that a cosharer under the XL P. Land Revenue Act, 1901-and, as we have seen, the proprietor of a specific plot of land in a joint mahal with a joint liability for the payment of revenue will be a cosharer under that Act-is entitled under Section 24 of that Act, where there is no lambardar, to nominate a person to be the patwari of his circle, and, under Section 45 of the Act, to nominate a lambardar for his mahal and he can even be appointed as such lambardar himself. He would thus be entitled to take part in the administration of the mahal and would, therefore, also be a cosharer under the .Agra Pre-emption Act, 1922.
21. Lastly, the point appears to have been raised before their Lordships of the Privy Council in the case of Ramjimal v. Biazuddin already cited by us on the first question, and it was remarked that
the learned Judges of the High-Court think that he is jointly liable with the other proprietors of the mahal for: the payment of the whole of the land revenue assessed on the mahal, but it appears that he is liable to pay only Rs. 16-1-0 which is entered in the revenue record as the revenue imposed upon the land owned by him. He has neither alleged nor proved that his liability extends beyond the payment of the revenue which is assessed upon his holding.
This passage unmistakably shows that in their Lordships' opinion the fact of joint liability for the payment of land revenue was a vital circumstance having a bearing on the right of the plaintiff to claim pre-emption. If it was otherwise the contention of the plaintiff's counsel in that case would certainly have been rejected as irrelevant or at least immaterial. Their Lordships, on the other hand, impliedly accepted the position that joint liability in a matter like this did confer a right on the plaintiff to pre-empt the sale, if the same was proved as a fact. Of course in that particular case the fact being otherwise, it could not improve the position of the pre-emptor. But that is a different matter.
22. As against the view unanimously taken in the above cases, the learned Counsel for the defendants appellants has cited to us the case of Munna Lal v. Bahadur Lal 1939 A.L.J. 337, decided by Bennet and Verma JJ. There it was remarked that
we would also like to point out that the view of the Court of first instance to the effect that the method in which the name of the proprietor of a specific plot of land was entered in the khewat or the question whether he was or was not jointly responsible for the revenue of the mahal was relevant for the decision of the question whether such a proprietor had the status of a co-shares: or not, is not correct. The language of the definition of petty proprietor' in the Agra Pre-emption Act shows that these are not relevant considerations.
23. This view, as we have already shown is in sharp conflict with the unanimous opinion taken in a number of cases and particulars by their Lordships of the Privy Council, though impliedly, in the case of Ramjimal v. Riaz-ud-din . This is apart from the rather surprising view contained in the last six words of the above quotation that the circumstance of joint liability for the payment of revenue was not even a relevant consideration in the definition of the term 'petty proprietor' in Section 4 (7) of the Act. If by reason of a certain fact a person could be held ''entitled to any interest in the joint lands of the mahal or to take part in the administration of its affairs' he could not be a mere petty proprietor, but, for all intants and purposes, a cosharer for purposes of pre-emption. There was no question of such a fact being 'not relevant' or unworthy of the consideration of the Court in judging the status of the person concerned. Besides, as we have shown, the weight of judicial authority is distinctly against this view, and we are bound to follow that.
24. We have, therefore, come to the conclusion that where a person, who has acquired a specific plot in a mahal, is also found jointly liable for the payment of the entire land revenue of the mahal along with the other cosharers, he must be deemed entitled to have an interest in the administration of the affairs of the mahal and as such would be a cosharer within the meaning of the Agra Pre-emption Act,
25. The second basis on which the plaintiffs in this case claim a right in the administration of the mahal, namely, that the new khewat No. 1/1, formed of plot No. 1349, acquired by the plaintiffs, still continues to be a part of the total 20 biswas mahal and was not treated as a khewat offside the same, also confirms the position claimed by them as a cosharer in the mahal. Nothing against this has been shown by the learned Counsel for the vendees-appellants. The plaintiffs are supported in this contention by the case of Ram Pratap Singh v. Lal Bahadur Singh : AIR1927All330 , where it was held that, so long as a plot forming part of a patti has not been excluded from the patti, a cosharer can enforce his right of preemption, even though the plot represents merely a petty-proprietary interest. In the present case also, despite the fact that the new khewat No. 1/1 is now recorded as haq-i-mutfarriqa, it still continues to form part of the same patti, and in fact of the same khewat with a common lambardar.
26. We are, therefore, of opinion that the lower appellate Court was right in holding that on account of the above two circumstances, the plaintiffs were entitled to a decree.
27. We, accordingly dismiss this appeal with costs.