1. The question we nave to decide in, these two appeals, in both of which the same parties are appellants, is whether or not they had a right of preemption according to custom.
2. The Court below has dismissed the claim of the plaintiffs holding that, on their status as disclosed by the evidence, they are not entitled to pre-empt.
3. The property which was sold, and in respect of which pre-emption was sought is situated in a village called Dudhi, in the Pargana of Sidhuajobna, in the Parauna Tahsil of the Gorakhpur District.
4. The lower Court held that as the plaintiffs admitted themselves to be what are called arazidars and as they are so called in the village papers, they had no right of pre-emption, and for this purpose the learned Subordinate Judge relied upon a Full Bench ruling of this Court Uman Kuari v. Jarbandhan Pathak 5 A.L.J. 447 : A.W.N. (1908) 195 : 4 M.L.T. 162 : 30 A. 479 (F.B.). If that ruling applies to the case which is now before us, then there can be no question that the decision of the lower Court is correct, but Dr. Agarwala, who has addressed a very learned and able argument to us on behalf of the appellants, has asked us not to decide the case merely upon the dictum contained in the judgment to which we have just referred and has asked us to deal with the case after an examination of the real position of these plaintiffs in the village in question.
5. So far as the Full Bench ruling is concerned, it certainly lays down that persons who are called arazidars are not members of the co-parcenary body and? are not entitled to pre-empt. The judgment on this point is a very short one and is not supported by much in the way of reasoning. The learned Judges, before whom the case was up, stated that it did not clearly appear what the nature of arazidir land was, but after reference to various Settlement Reports, they found that arazidars were not treated as members of the co-parcenary body.
6. The expression arazidar has been defind in the Settlement Report of the Gorakhpur District prepared by Mr. Cruickshank and published in 1891. The earlier Settlement of this District had been conducted by Mr. Lumsden, who was a well known authority on all Revenue matters. At paragaraph 201, page 56 of Mr. Cruickshank's report he refers to Mr. Lumsden's description of the people who are known as arazidars. We think it advisable to quote this passage in full. It is as followfs:
In Pargana Sidhua Jobna Mr. Lumsden, at the last Settlement, noted: In describing the tenures of this pargana mention of the immense number of birt and independent arazi holdings must not be omitted. These are small tracts of land situated in almost every village which were originally, in most cases, held rent free. They had their origin in that general transaction of property into the hands of strangers which took place in this Paragana in the early part of the present century and which has already been alluded to in describing the origin and past history of the principal tahqdars. Weak and impoverished zemindars, anxious to have some one between them and the ruling power, voluntarily transferred their villages to one or other of the powerful taluqdars who, at that time, gained a footing in the Pargana, reserving only for themselves a small tract of laud sufficient for their immediate subsistence. In the case of other villages which were forcibly usurped by the taluqdars, the latter compromised matters so far as to allow the old proprietors to retain possession of certain defined parcels of land in their respective villages In this way were created most of these birt and independent arazidari holdings which are so numerous in this pargana and which have been a source of infinite trouble to the Settlement Officer both on account of the frequency of disputes regarding their exact limits and the difficulty of apportioning to each its fair quota of the Government demand. The proprietors of these parcels of land hold and manage independently of the village zemindar, the latter in the case of birt trazidars only receiving a malikana allowance calculated at 10% over the revenue jama,
7. We have already adverted to the fact that the property with which we are now concerned is situate in this pargana of Sidhua Jobna referred to in Mr. Lumsden's definition.
8. We may also refer to another paragraph of this same Settlement Report, namely, 187, at page 52. There the Settlement Officer quotes a definition by Mr. Reid who had been the Settlement Officer of Azamgarh--a definition of the term arazidars.
9. Mr. Reid defined the term arazi as 'plot of laud which, though included within the area of mauzas and mahals, are held on a distinct tenure from and convey no title to rights or interests in other parts vi the mauzas and mahals.'
10. Turning now to the documentary evidence in the case, the first paper which calls for notice is the wajib-ul-arz which was prepared in the year 1860. A small extract of this document has been printed at page 17 of the printed book in First Appeal No. 291 of 1920. We have, however, referred to the certified copy of the whole wajib-ul-arz which is upon the record and a great deal of which has not been printed. According to what is net out in this document, a declaration was made in or about the year 1860 by certain persons whose names are mentioned at the beginning of the document and who presumably were the proprietors of the village at that time. We have compared these names with the pedigree set out in the Court below and we are satisfied that the declarants were members of the proprietary body in this village.
10. In the 5th paragraph of this document there is recorded what purports to be the custom of pre-emption. It is declared that every co-sharer has power to transfer by sale and mortgage his land or his share to the extent of his possession. At the time the transfer is made the Condition to be observed is that if any body wants to transfer his share, then, first of all, his near co-sharer shall be entitled to have it and, in case of refusal, his other co-sharers shall be entitled; and if all refuse or do not offer a suitable price, then the share can be transferred to a third person, and no co-sharer shall have any right of pre-emption.
11. Paragraph 11 of this document which has not been printed but which, as we have said, is on tile record, contains a further portion of the declaration made by the village proprietors at this time, namely, 1860. They set out that in this Mauza of Dudhi there is an area of 49 bighas 10 biswas Settlement arazi bandobasti belonging to two persons Indar Dat and Sundar Dat Pande, There is a further reference to two other plots which are described in the similar way. Dealing with all these plots the declaration of the proprietors of the village is, that the persons named, Indar Dat and others, are in possession of these arazi lands upon payment of Government revenue. It is further set out that the declarants, i.e., the proprietors, will not interfere with them in any way (un se kuchh muzahimat na karenge).
12. The next document to which we have been referred is printed at page 11 of the paper-book in First Appeal No. 291 of 1920. This is called a Supplementary khewat of Mauza Dudhi and appears to have been prepared in 1293 Fasli corresponding to the year 1886 A.D. at which time Settlement operations in Gorakhpur were going on.
13. This document sets out that Mauaz Dudhi is an inhabited village in the form of an imperfect Pattidari tenure. The first two entries relate to two shares of, eight, annas each, one belonging to Shiam Baran Singh and others mentioned in khewat Khata No. 1, and the other described as belonging to Udaibhan Partab Singh and others mentioned in khewat Khata No. 2.
14. The first of these shares of eight annas is described as being in possession of the proprietors, and it is said that both the co-sharers collect rent from the tenants and, after payment of Government revenue, cesses and village expanses, the account is adjusted at the end of the year. The second share of eight annas is described as being in the possession of a lessee, and according to the column of remarks this lessee, after making collections from the tenants, deposits his lease money, according to the conditions of his lease, with the proprietors, who themselves pay the Government revenue and cesses into the Government Treasury and obtain revenue receipts. following these two entries we have two entries Nos. 3 and 4 relating to parcels of shamilat land. One is shamilat of Udaibhan Partab Singh and others measuring 8 bighas odd; the other is shamilat deh or village common land amounting to 19 bighas.
15. These four entries are followed by four other an tries Nos. 5, 6, 7 and 8. The entries Nos. 5, 6 and 7 are shown to relate to two persons who are styled 'arazidars.' That is the title above the entries in question. The first of these, entry No. 5, relates to the arazi of one Indar Dat who, we understand, is now represented by the appellants. Entries Nos. 6 and 7 relate to the arazi holdings of other persons with whom we are not concerned in the present case. The last entry, No. 8, relates to a small area which is held by one Shankar Dat as shankalap. He is described in the paper as a Sahankalapdar.
16. Attached to this statement of the share and areas in the village there is the usual statement which accompanies papers of this kind and which is construed as being a wajib-ul-arz, and in this a custom of pre-emption is set out in paragraph 5 as follows:
If any person wants to transfer his property (haqiat) he should transfer it first to his own brother and near relation and then to a distant relation. In case of refusal he should transfer it to the co-sharers in the patti and then to the co-sharers in the village. If none of these persons should take it or pay a proper price, the transferor shall have power to transfer his share to whomsoever he likes.
17. The appellants have taken, their stand upon the passage which has just been cited arid they maintain that they are entitled for the purposes of pre-emption to be treated as cp-sharers in the village. It is to be noted in this connection that the wajib-ul-arz attached tr. this khewat prepared in the year 1293 Fasli is signed; not only by persons who are undoubtedly the proprietors of the village but also by Indar Dat and one at least of the other arazidars. Great stress, we may observe, has been laid upon this fact by Dr. Agarwala in his argument.
18. Lastly, we have before us Exhibit 4 which is a copy of the Settlement khewat of Mauza Dudhi prepared at the recent Settlement, in the year 1223, Fasli, corresponding to 1916-17 A.D.
19. By this time apparently the constitution of the village had somewhat altered and we find that instead of two pattis of eight annas each there is one share amounting to sixteen annas which is recorded as Being the property of Udai Bhau Partab Singh, the lambardar. Opposite this entry we find the statement of Government revenue and in the last column we find a schedule showing who the present proprietors are. This column also sets out that at the time the record Was prepared two annas out of the sixteen annas were in possession of the owners and that the remaining fourteen annas share was in the possession of mortgagees.
20. The second entry in this document stands in the name of one Sahdeo Prasad Tiwari lambardar. This entry relates to an area of 46 52 acres.
21. The Government revenue assessed on this area is set out as Sections 76 and the names of the persons who are interested in this area and who ate called arazidars are set out in the column of remarks. Those names include the names of the appellants.
22. The third entry relates to another area of arazi in the possession of Mahabir Das, lambardar, and the fourth entry also relates to a similar holding in the possession of the same person. The total area of the arazi holding is given as 54.85 acres and the total revenue on this area is given as Rs. 72-14-0, and then for the last entry we have it stated that the entire area of the mauza is 543.96 acres and the total Government revenue including the revenue assessed on the arazidar holding conies to Rs. 614 for the first five years of the period of Settlement.
23. In the remarks column opposite this last entry it is stated that this is the total of the (mahal kul).
24. These are the relevant papers which we have to consider and it has been argued very forcibly by Dr. Agarwala that on these entries his clients ought to be treated as persons who had the status of co-sharers in the village.
25. We have omitted to state in dealing with Exhibit No. 2, which is the khewat of the village prepared in the year 1293 Fasli, that in describing the holding of Indar Dat arazidar the column of remarks sets out the following particulars:
He is the sole proprietor (malik wakid). He deposits into the Government Treasury the Government Revenue and cesses and obtains revenue receipts and defrays the village expenses from his own pocket.
26. Similar entries are made in respect of two other persons whose names are entered as arazidars.
27. The learned Judge of the Court below has, in his judgment, referred to another judgment of this Court, apart from the Full Bench ruling which we have already cited. This is the case of Mahadeo Prasad v. Jagar Deo Gir 33 Ind. Cas. 23 : 38 A. 260 : 14 A.L.J. 313. That was a case in which a certain area in a village which had once been held revenue-free had become assessed to revenue in the year 1840. There it was found that the holder of this plot of resumed muafi paid his revenue direct to Government, and the question arose, in that case, whether or not this person would be entitled to claim the status of co-sharer in the 16-annas mahal. A number of rulings of this Court were referred to and it was laid down, as it has been laid down in other cases, that the ultimate test in a litigation of this kind in which a right of pre-emption is claimed is, whether or not the person who seeks pre-emption is a co-sharer either in the profits or in the liability for revenue with the vendors. It was held, under a long series of rulings, that owners of resumed muafi plots had been treated as not being co-sharers within the meaning of the wajib-ul-arz. The learned Judge of the Court below was, we think, right in relying upon this ruling although it does not appear, as a matter of certainty, whether the arazi lands, with which we are now concerned in the present case, were once held revenue free and were afterwards assessed to revenue. Judging from the definition given by Mr. Lumsden, we should imagine that at some remote period they had, been held free of revenue and had been subsequently assessed. The point, however, is not of much importance for it seems to us that if this case is to be decided upon the principles which are laid down in the case just cited Mahadeo Prasad v. Jagar Deo Gir 33 Ind. Cas. 23 : 38 A. 260 : 14 A.L.J. 313, then we must agree with the lower Court and hold that the appellants here have no right of pre-emption.
28. Dr. Agarwala, in pressing his claim for the recognition of his clients as co-sharers in the village, has laid considerable stress on the provisions of Section 142 of the Land Revenue Act, U.P. Act fill of 1.901) which lays down that all the proprietors of a mahal are jointly and severally responsible to Government for the revenue, for the time being assessed thereon. He claims that having regard to the present constitution of this village, his clients are persons who ought to be deemed proprietors within the meaning of this section and his argument implies, therefore, that there is, as between his clients and the persons who are the proprietors of the village, a community of interest and also a community of responsibility for the Government revenue.
29. That argument, however, does not seem to us to be borne out by what we find-recorded in the various papers to which we have referred. In the first place, we must lay stress upon the declaration which was made in the year 1860. At that time the arazi lands in which the appellants are co-sharers were in the possession of Indar Dat and Sundar Dat and the persons who are making the declaration on that occasion declared most distinctly that these arazidars were in possession on payment of their own Government Revenue and that they (the proprietors) would not exercise any interference whatever with them. That is a very solid piece of evidence for the purpose of showing that there is no community of interest between the proprietary body of this village and the arazidars. Then, again, we refer to the remarks which are set out against the names of these arazidars in the khewat Mizos Fasli. We have already mentioned that Indar Dat is there described as being the 'sole proprietor' of the area entered against his name. It is further stated that he (Indar Dat) deposits the, revenue in the Treasury and obtains receipts and defrays village expenses from his own pocket. We take this entry to mean that the responsibility for the Government re-venue assessed upon the area in Indar Dat's possession was a responsibility which was confined to himself and with which the proprietors of the two pattis of eight annas each had no concern whatever.
30. Dr. Agarwala's argument really jests in a great measure upon the form in which the khewat of the recent Settlement of 1323 Fasli has been prepared. He has pointed out that after the various interests of the village have been set out in detail with particulars of the areas and the Government revenue assessed, a total has been made of the whole, and he, therefore, asks us to hold that the inference from all this is, that his clients, who are interested in the property specified in the second entry, ere, for, that reason, persons who have an interest in the mahal. If there, were no other evidence in the case except this bare statement, it might be possible to say something in favour of this argument, but having before us the previous history of the village set out in the various papers, we must hold that the arazidars of this village are not co-sharers and have no community of interest or responsibility with the proprietary body. All this brings us again to the definition of Mr. Reid quoted in paragraph 187 of the Settlement Report of Gorakhpur to which we have referred. Mr. Reid, who was a great authority on all revenue questions in this Province, has distinctly laid it down that arazis are plots of land which, though included within the area of mauzas and mahals, are held as a distinct tenure from and convey no title to rights or interests in other parts of the mauzas and mahal.
31. That appears to us to be exactly the situation here. These plots of arazi lands may be within the area of Mauza Dudhi or in the area of the mahal which goes by that name, but they are held on a distinct tenure from that of the mauza or mahal, and their ownership conveys no title to any right or interest in other parts of the mauzas or mahals. We think, therefore, that the learned Subordinate Judge came to a right decision in this case and both the appeals, therefore fail and are dismissed with costs.