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Suraj Bhan Vs. Somwarpuri - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1915All419; 30Ind.Cas.949
AppellantSuraj Bhan
RespondentSomwarpuri
Excerpt:
pre-emption - bundlekhand land alienation act (ii of 1903), section 3--sanction by collector to bring suit for pre-emption, when required. - - the sanction contemplated in section 6 is clearly in the case of a voluntary transfer......to many objections that the sale of the property should be kept in abeyance until such time the collector sanctions or refuses to sanction the sale. we may also point out that it is extremely doubtful whether the collector could give any such sanction to a pre-emptor. there is no provision in the act which entitles an intending pre-emptor to get the sanction of the collector to bring a suit for preemption. if the sanction of the collector could not be obtained before the bringing of the suit, it seems a fortiori that he could not grant the sanction subsequently. the sanction contemplated in section 6 is clearly in the case of a voluntary transfer. we allow the appeal, set aside the order of the learned district judge and restore the decree of the court of first instance with costs in.....
Judgment:

1. This appeal arises out of a suit for pre-emption. The plaintiff pre-emptor has been found by both the Courts to be a person who was not entitled to purchase the property in question having regard to Section 3 of the Land Alienation Act, II of 1903, inasmuch as he was not a member of an agricultural tribe. The Court of first instance dismissed the plaintiff's suit on this ground. The lower Appellate Court seems to have considered that the Court might make a decree in the plaintiff's favour subject to the consent of the Collector to be subsequently obtained, and remanded the case. We think the view taken by the learned District Judge was not correct. The plaintiff's alleged cause of action was the fact that the vendor, being bound by a custom of pre-emption to first offer the property to the plaintiff, did not do so. We think that the Act, which provides that the property should not be soil to the pre emptor, entirely absolved the vendor from any obligation to first offer the property to the pre-emptor. It is said that the subsequent sanction of the Collector might smooth over all these difficulties. It seems to us that the Court's jurisdiction was either to grant a decree for pre-emption or not to do so. It would be obviously open to many objections that the sale of the property should be kept in abeyance until such time the Collector sanctions or refuses to sanction the sale. We may also point out that it is extremely doubtful whether the Collector could give any such sanction to a pre-emptor. There is no provision in the Act which entitles an intending pre-emptor to get the sanction of the Collector to bring a suit for preemption. If the sanction of the Collector could not be obtained before the bringing of the suit, it seems a fortiori that he could not grant the sanction subsequently. The sanction contemplated in Section 6 is clearly in the case of a voluntary transfer. We allow the appeal, set aside the order of the learned District Judge and restore the decree of the Court of first instance with costs in all Courts.


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