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Mathura Prasad Vs. Hardeo Bakhsh Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1920All133; (1920)ILR42All477
AppellantMathura Prasad
RespondentHardeo Bakhsh Singh and ors.
Cases ReferredMunna Lal v. Hajira Jan
Excerpt:
.....that his client was hot a co-sharer in the holdings sold, hence he had not brought his suit as a shafi-i-sharik fi nafsie mubee (that is, as a pre-emptor being a partner in the substance of the thing sold), but that he based his right as being a shafi-i-khalil or a shafi-i-jar mulasik. it is pleaded before us that the plaintiff is a shafi-i-sharik, inasmuch as the partition of the village is an imperfect partition and not a perfect one. he claims that as the pattis constitute one mahal and there has not been a perfect partition the plaintiff must be a shafi-i sharik. clearly on the facts of the present case the plaintiff is not the owner of an 'undivided share of the property which forms th]e, subject of pre-emption. it is perfectly true that in that case there had been what is known..........had made the necessary demands, but it dismissed his claim on the ground that he was neither a shafi-i-sharik nor,a shafi-i-khalil nor had ' any right as a shafi -i -jar. in the court below the plaintiff's . pleader made a distinct statement which is to be found printed at page 3 r of the printed record in which he clearly stated that his client was hot a co-sharer in the holdings sold, hence he had not brought his suit as a shafi-i-sharik fi nafsie mubee (that is, as a pre-emptor being a partner in the substance of the thing sold), but that he based his right as being a shafi-i-khalil or a shafi-i-jar mulasik. the court below has held that the plaintiff is none of these three classes of co-sharers within the meaning of the muhammadan law, and has dismissed his suit.2. before us it.....
Judgment:

Tudball and Muhammad Rafiq, JJ.

1. This is a plaintiffs appeal arising out of a suit for pre-etnption. The plaintiff is a co-sharer in patti Raghubir Singh in the village of Aiathapur. The defendants Nos. 5 to 7 were the owners of patti Nityanand, and defendant No. 8 was the owner of patti Shib Lal. Defen--dants Nos. 5 to 8 sold the whole of these two pattis Nityanand and Shib Lal and a house to the defendants Nos. 1 to 4, who were complete strangers, for the sum of Rs. 6,600. The plaintiff claimed a right of pre-emption on the basis of custom recorded in the wajib-ul-arz. Admittedly, none of the incidents of the custom are set out in the wajib-ul-arz. The plaintiff in his plaint distinctly stated that the rules of Muhammadan law applied and that in accordance with those rules he made the two demands as laid down by the Muhammadan law; the defendants vendees refused to return the land to him, hence the suit. There was a dispute as to the amount of consideration, but that has been settled by the decision of the court below and is not challenged before us. We may mention that the learned pleader is unable to point out to us anything which was jointly held by the parties. The six separate pattis constitute the twenty biswas and the. owners of the plaintiff's patti have no right whatsoever in any of the other pattis in the mahal. _ There is complete separation of all rights, but the partition being what is known in the Revenue law as imperfect, there remains a joint liability to Government for revenue. The court below accepted the evidence proving that the plaintiff had made the necessary demands, but it dismissed his claim on the ground that he was neither a shafi-i-sharik nor,a shafi-i-khalil nor had ' any right as a shafi -i -jar. In the court below the plaintiff's . pleader made a distinct statement which is to be found printed at page 3 R of the printed record in which he clearly stated that his client was hot a co-sharer in the holdings sold, hence he had not brought his suit as a shafi-i-sharik fi nafsie mubee (that is, as a pre-emptor being a partner in the substance of the thing sold), but that he based his right as being a shafi-i-khalil or a shafi-i-jar mulasik. The court below has held that the plaintiff is none of these three classes of co-sharers within the meaning of the Muhammadan law, and has dismissed his suit.

2. Before us it is urged that the plaintiff's pleader had no right whatsoever to make any such admission as he did make and that the appellant is not bound by such an admission. As a matter of fact there is nothing in the plaint to show in what capacity the plaintiff claimed to pre-empt, that is, whether as a -shafi-i-sharik or shafi-i-khalil or a shafi-i-jar. That point was cleared up by the statement of his pleader. It is pleaded before us that the plaintiff is a shafi-i-sharik, inasmuch as the partition of the village is an imperfect partition and not a perfect one.. The learned pleader for the appellant is unable to point out to us that any portion of the village was jointly held or used by the owners of the various pattis, or that anything was left as the joint property of the owners of the various pattis. He claims that as the pattis constitute one mahal and there has not been a perfect partition the plaintiff must be a shafi-i sharik. In Muhammadan law, vide Tyabjee's Principles of Muham-madan Law, paragraph 541 A, by the word sharik or co-sharer is meant ' the owner of an undivided share in the property of which the subject of pre-emption forma a part or share. Clearly on the facts of the present case the plaintiff is not the owner of an 'undivided share of the property which forms th]e, subject of pre-emption. He has no share in it whatsoever of :any sort. Our attention is called to the decision of this Court in Munna Lal v. Hajira Jan (1910) I.L.R. 33 All. 28, but if that judgment is carefully read it is by no means in favour of the present appellant, in fact, it is dead against him. It is perfectly true that in that case there had been what is known in Revenue law as a perfect partition and the two estates were entirely separate. In that case attention was called to certain decisions in cases of imperfect partitions of villages, but in each of those cases ,it was distinctly noted that there was still some portion of property which had been left joint and undivided, It is clear that, within the meaning of the Muhammadan law, the plaintiff in the circumstances of the present case is not a shafi-i-sharih. His contention that he was a shafi-i-hhalil depended upon the oral evidence of one kahar, whose evidence was rejected by the court below, and we consider rightly rejected. As for his claim on' the basis of being a shafi-i-jar that is clearly defeated by the, Very ruling quoted by him in Munna Lal v. Hajira Jan (1910) I.L.R. 33 All, 28, where it was distinctly held that in the case of zamindaris and large landed properties preemption on the ground of vicinage was never allowed. On these findings the appeal must fail. We may note that we should find it very difficult indeed to agree with the court below on the evidence which it accepted of the-performance of the two demands according to the Muham-madan law. If it were necessaiy for us to come to a finding on that point that finding would be in favour of the opposite party.

3. The appeal fails and is dismissed with costs.


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