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B. Basdeo NaraIn Singh and anr. Vs. Birju Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All226; 137Ind.Cas.149
AppellantB. Basdeo NaraIn Singh and anr.
RespondentBirju Singh and ors.
Excerpt:
- - 4. if sub-section 1, section 12, had stood by itself it would have given the plaintiffs a preferential right by virtue of their being cosharers in the same mahal with the vendor, but sub-section 2 restricts the right conferred upon them by sub-section 1. 5. under sub-section 1 as against a vendee who-is a perfect stranger cosharers in the mahal, whether they are in the same-village with the vendor or not, as well as cosharers in the same village, whether in the same mahal with the vendor or not, have a preferential right......are cosharers in mahal mahwapar because they own shares in a village-which is included in this mahal. the vendor however is a cosharer in the same mahal but in another village.4. if sub-section 1, section 12, had stood by itself it would have given the plaintiffs a preferential right by virtue of their being cosharers in the same mahal with the vendor, but sub-section 2 restricts the right conferred upon them by sub-section 1.5. under sub-section 1 as against a vendee who-is a perfect stranger cosharers in the mahal, whether they are in the same-village with the vendor or not, as well as cosharers in the same village, whether in the same mahal with the vendor or not, have a preferential right. the legislature has not interfered with the right of pre-emption in favour of cosharers in.....
Judgment:

Sulaiman, Ag. C.J.

1. This is a plaintiff's appeal arising out of a suit for pre-emption. Mahal Mahwapar consists of portions of five villages. The plaintiff's are cosharers in the same mahal Mahwapar but their shares are situated in the first village. The vendor was a cosharer in the same mahal but his share was situated in the second village. The vendee had no share within Mahal Mahwapar. At the same time part of the villages in which the vendor had a share was situated outside the mahal and in two other mahals. Both the plaintiffs and the vendee were cosharers in the second village Bharpur Pachwar but outside mahal Mahwapar.

2. It is therefore quite obvious that the plaintiffs cannot claim a preferential right by virtue of their being cosharers in village Bharpur Pachhwar alone because there the plaintiffs and the vendee are both on the same footing as they own shares in that village outside the mahal in dispute.

3. The plaintiff's certainly have an advantage over the vendee in this respect that they are cosharers in Mahal Mahwapar because they own shares in a village-which is included in this mahal. The vendor however is a cosharer in the same mahal but in another village.

4. If Sub-section 1, Section 12, had stood by itself it would have given the plaintiffs a preferential right by virtue of their being cosharers in the same mahal with the vendor, but Sub-section 2 restricts the right conferred upon them by Sub-section 1.

5. Under Sub-section 1 as against a vendee who-is a perfect stranger cosharers in the mahal, whether they are in the same-village with the vendor or not, as well as cosharers in the same village, whether in the same mahal with the vendor or not, have a preferential right. The legislature has not interfered with the right of pre-emption in favour of cosharers in the-same village which is conferred by Sub-section 1. But Sub-section 2 provides that where a mahal includes more villages than one no person having proprietary rights in any such village shall be entitled by reason thereof to a right of preemption in respect of any other such village. It undoubtedly contemplates that the right of preemption should not be exercised out side the village in which the pre-empt or is a cosharer, that is to say, there would be no right of preemption in favour of a proprietor of one village in respect of a share sold in another village, even though both the villages happen to be within the same mahal. The proprietor in one village by reason of his proprietary rights is necessarily a cosharer in the mahal which includes the village along with the village of the vendor but under Sub-section 2 he is not allowed a right to pre-empt a share in the other villages. The policy of the legislature appears to be that the right of pre-emption should be confined to proprietors in the same village and not extended to shares sold in other villages. In our opinion it would make no difference whether one mahal consists of two or more complete villages or only portions of two or more villages. On the findings returned by the lower appellate Court it is quite clear that the plaintiffs have no preference over the defendant vendee. The appeal is accordingly dismissed with costs.


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