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Bhawani DIn and ors. Vs. Jadunath Misir and - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All272; 61Ind.Cas.89
AppellantBhawani DIn and ors.
RespondentJadunath Misir And; Ganesh Datt and anr.
Cases ReferredMuhammad Mahbub Ali Khan v. Raghubar Dayal
Excerpt:
.....of first instance held that by reason of the perfect partition, the plaintiff being no longer a co sharer in either of the two mahals, had no longer any right of preemption as he did not come within the custom and dismissed the suit. the lower appellate court held that as the 5th category of co sharers with a right to preempt, consisting of malikan dei, perfect partition could not have affected the rights of this category and all malikan deh had a right to pre-empt whether they were co-sharers in the mahal or not. the case, in our opinion, is clearly governed by the rulings in khayali ram v......the words malikan deh have a broader meaning than the words histedar deh, that partition or no partition malikan deh, remain malikan deh to the very end whereas the status of a hissedar deh is charged by a partition. we cannot agree with this contention. at the time hat this wajib-ul-arz was drawn up malikan deh and hissedar deh were one an the same thing. as has been pointed on frequently the basis of the right of preemption is prima facie the co-ownership of the parties in the same mahal of a village-parties who are no longer co-sharers or sharers with each other in the bigger unit, unless there is something clear and distinct to the contrary, have no longer any right after a partition has separated them completely from their other co-sharers. in our opinion the decision of the.....
Judgment:

1. This first appeal from order arises out of a suit for preemption. The undisputed facts are as follows:

The suit relates, to shares in two villages Mauza Katia and Mauza Sakhwi. In the year 1885 these two villages consisted of one mahal each and the wajib-ul-arz which was drawn up related the existence of a custom under which the Co-sharers were divided into five groups. The first group consisted of sharik aziz baid; the second of sharik aziz baid; the third of their patti; the fourth of hissadar thok, and the fifth of malikan deh. The two villages were at that time divided up into thok and pattis. In the year 1895 each village was perfectly partitioned into seven separate and dieting mahals. The usual wajib-ul-araiz were not drawn up at the time of partition. At the next settlement, for each mahal there was recorded a wajib-ul-arz in which the same custom of pre-emption was recorded as had been recorded in 1885. It is an admitted fast that the plaintiff pre-emptor is not a co-sharer in mahal No. 1, Mauza Katia, or in mahal No. 4, Mama Shakwi. The present appellants-defendants before us save certain property situated in another village to their transferors in exChange for a 5 anna, 4 pies share in mahal No. I, 'Mama Katia and 5 anna, 4 pies, share in mahal No. 4, Mauza Sakhwi. In the year 1895 mahal No. 1, Mauza Katia was in the ownership and possession of a single proprietor, Brajnath Shukul. Mauza Sakhwi, mahal No. 4, was also owned and possessed by the same man alone. In these circumstances the Court of first instance held that by reason of the perfect partition, the plaintiff being no longer a Co sharer in either of the two mahals, had no longer any right of preemption as he did not come within the custom and dismissed the suit. The lower Appellate Court held that as the 5th category of co sharers with a right to preempt, consisting of malikan dei, perfect partition could not have affected the rights of this category and all malikan deh had a right to pre-empt whether they were Co-sharers in the mahal or not. In this view it allowed the appeal and remanded the suit to the Court of first instance for the decision of other issues. The case, in our opinion, is clearly governed by the rulings in Khayali Ram v. Kali Charan 29 Ind. Cas. 1000 : 13 A.L.J. 712 : 37 A. 537 and Digambar Singh v. Ahmed Sayei Khan 28 Ind. Cas. 34 : 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 : (915) M.W.N. 581 : 42 I.A. 10 : 37 A. 129 (P.C.). There is another ruling also on the same subject to be found in Muhammad Mahbub Ali Khan v. Raghubar Dayal 30 Ind. Cas. 947 : 38 A. 27 : 13 A.L.J. 951. It is urged before us that the words malikan deh have a broader meaning than the words histedar deh, that partition or no partition malikan deh, remain malikan deh to the very end whereas the status of a hissedar deh is Charged by a partition. We cannot agree with this contention. At the time hat this wajib-ul-arz was drawn up malikan deh and hissedar deh were one an the same thing. As has been pointed on frequently the basis of the right of preemption is prima facie the co-ownership of the parties in the same mahal of a village-Parties who are no longer co-sharers or sharers with each other in the bigger unit, unless there is something clear and distinct to the contrary, have no longer any right after a partition has separated them completely from their other co-sharers. In our opinion the decision of the Court of first instance was correct. We, therefore, allow this appeal, set aside the order of the Court below and restore the decree of the Court of first instance. The appellants will have their costs in all Courts.


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