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Bahora Sri Kishen and anr. Vs. Kunwar Chandra Sekhar Baksh Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in92Ind.Cas.353
AppellantBahora Sri Kishen and anr.
RespondentKunwar Chandra Sekhar Baksh Singh and ors.
Cases ReferredDigambar Singh v. Ahmed Sayeed Khan
Excerpt:
pre-emption - wajib-ul-arz embodying custom--partition of village--agreement to observe custom irrespective of partition--agreement, whether binding--fresh wajib-ul-arz, whether necessary. - .....of the village can be enforced after the village has been partitioned by a co-sharer of one mahal in respect of property situate in another mahal. the court of first instance dismissed the claim, but the lower appellate court, relying on the decision of their lordships of the privy council in the case of digambar singh v. ahmed sayeed khan 28 ind. cas. 34 : 37 a. 129 : 13 a.l.j 236 : 19 c.w.n. 393 : 17 m.l.t. 193 : 2 l.w. 303 : 21 c.l.j. 237 : 28 m.l.j. 556 : 17 bom. l.r. 393 : (1915) m.w. n. 581 : 42 i.a. 10 (p.c.), held that in the absence of a fresh wajib-ul-arz prepared at the time of partition, indicating a contrary intention, it cannot be presumed as a matter of law or principle that the custom of pre-emption in force before partition was no longer to have effect or.....
Judgment:

1. This appeal arises out of a suit for pre-emption, and the question for consideration is whether a custom of pre-emption recorded in the wajib-ul-arz framed prior to the partition of the village can be enforced after the village has been partitioned by a co-sharer of one mahal in respect of property situate in another mahal. The Court of first instance dismissed the claim, but the lower Appellate Court, relying on the decision of their Lordships of the Privy Council in the case of Digambar Singh v. Ahmed Sayeed Khan 28 Ind. Cas. 34 : 37 A. 129 : 13 A.L.J 236 : 19 C.W.N. 393 : 17 M.L.T. 193 : 2 L.W. 303 : 21 C.L.J. 237 : 28 M.L.J. 556 : 17 Bom. L.R. 393 : (1915) M.W. N. 581 : 42 I.A. 10 (P.C.), held that in the absence of a fresh wajib-ul-arz prepared at the time of partition, indicating a contrary intention, it cannot be presumed as a matter of law or principle that the custom of pre-emption in force before partition was no longer to have effect or operation. It referred to the tarz taqsim prepared at the time of the partition, wherein it was stated as a matter of arrangement between the co-sharers, which the partition officer had accepted and the Collector had confirmed, that a co-sharer in a mahal will have a right of pre-emption in respect of the property of the other mahal despite the partition. Section 114 of the U.P. Land Revenue Act, III of 1901, provides for the preparation of a tarz taqsim or partition proceeding determining the principles which shall govern the partition, detailing how the partition is to be made, and deciding all disputed questions that may have arisen in connection therewith. A partition is subsequently effected in accordance with the principles so laid down in the partition proceedings. If reservation is made in favour of a custom of the kind here in question, that reservation operates as a condition precedent to the partition and is as much binding on the co-sharers, who are parties to the partition proceeding, as the partition itself. It is not necessary that a fresh wajib-ul arz should be prepared at the time of partition in respect of each mahal, embodying such a custom. The wajib-ul-arz relating to the village recognised the existence of a custom of pre-emption amongst the co-sharers of the village, and when the village was divided by partition into different mahals, the co-sharers agreed to the partition subject to the reservation that the custom will continue in force irrespective of that partition, and that a co-sharer of one mahal would be entitled to pre-empt in respect of property situated in another mahal. Ordinarily where a partition has taken place, the joint ownership is destroyed, and each mahal becomes a separate unit for the purpose of regulating the rights of the co-sharers, forming the proprietary body of that mahal inter se. But in this particular case the partition was made subject to the reservation that so far as the custom of pre emption was concerned, it was to continue in force irrespective of the partition, or in other words, as if the interests of the co-sharers of the village in the different mahals had remained undisturbed The defendant vendee is a stranger. The plaintiff pre-emptor is a co-sharer in one of the mahals and as such he is entitled to preference as against the former. There is no reason in these circumstances for interfering with the decision of the lower Appellate Court. The appeal is dismissed under Order XLI, Rule 11. C.P.C.


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