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Ghasi Ram Vs. Gurbachan Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 32 of 1949
Judge
Reported inAIR1953P& H107
ActsAgra Pre-emption Act, 1922 - Sections 4(1) and 7; Uttar Pradesh Land Revenue Act, 1901 - Sections 72, 142 and 146
AppellantGhasi Ram
RespondentGurbachan Singh
Appellant Advocate Tek Chand, Adv.
Respondent Advocate F.C. Mital and; Bishan Narain, Advs.
DispositionAppeal dismissed
Cases ReferredDakhni Din v. Rahim
Excerpt:
.....by a single judge in exercising powers of superintendence under article 227 of the constitution. - clearly gurbachan singh should be regarded to be a co-sharer in the village......ghasi ram, plaintiff, instituted civil suit no. 648 of 1945 for possession by pre-emption of the land in suit. in the plaint it was stated that the plaintiff was a co-sharer in the village while the defendant-vendee was a stranger and that according to the provisions of the 'wajib-ul-arz' the plaintiff had a right to pre-empt the sale against the vendee. village salimpur where the land in suit is situated was formerly part of the mee-rut district in the united provinces of agra and oudh and was by proclamation published in notification no. 984-c, dated the 22-2-1915, included in the province of delhi with effect from the 1-4-1915. schedule iii read with section 8, delhi laws act, 1915) provides inter alia that the u. p. land revenue act, 1901, shall continue to be in force in the.....
Judgment:

Harnam Singh, J.

1. On the 11-8-1944, Fateh Singh defendant No. 2 sold the land in suit to Gurbachan Singh defendant No. 1. On the 31-8-1945, Ghasi Ram, plaintiff, instituted Civil Suit No. 648 of 1945 for possession by pre-emption of the land in suit. In the plaint it was stated that the plaintiff was a co-sharer in the village while the defendant-vendee was a stranger and that according to the provisions of the 'wajib-ul-arz' the plaintiff had a right to pre-empt the sale against the vendee. Village Salimpur where the land in suit is situated was formerly part of the Mee-rut District in the United Provinces of Agra and Oudh and was by proclamation published in Notification No. 984-C, dated the 22-2-1915, included in the province of Delhi with effect from the 1-4-1915. Schedule III read with Section 8, Delhi Laws Act, 1915) provides inter alia that the U. P. Land Revenue Act, 1901, shall continue to be in force in the territory added to the Province of Delhi and which was formerly included within the United Provinces of Agra and Oudh.

2. Gurbachan Singh defendant No. 1 resisted the suit pleading inter alia that the plaintiff had no right of pre-emption inasmuch as he was also a co-sharer in the village.

3. In deciding the suit the trial Court found that the plaintiff had a preferential right to purchase against the vendee. In the Court of first instance) it was not disputed that on the date of sale the defendant vendee was owner of khasra No. 319/46 in village Salimpur. On appeal, the Senior Subordinate Judge found that the purchaser of an isolated plot of land is a co-sharer within the provisions of the wajib-ul-arz. In the result, the Senior Subordinate Judge allowed the appeal and dismissed the suit of the plaintiff with costs throughout.

4. From the decree passed by the Senior Subordinate Judge on 30-8-1946, Ghasi Ram plaintiff appealed under Section 100, Civil P. C.

5. By judgment dated 2-12-1948 Falshaw, J. has dismissed Regular Second Appeal No. 2649 of 1946.

6. In these circumstances Ghasi Ram plaintiff has come up under Clause 10 of the Letters Patent from the judgment of Falshaw J. in --Regular Second Appeal No. 2649 of 1946.

7 In these proceedings we are concerned with the correctness of the decision given on the following issue:

'Whether the plaintiff has got a preferential right of pre-emption.'

8. Basing himself on the provisions of Section 4(1) and Section 4 (7), Agra Pre-emption Act, 1922, Mr. Tek Chand appearing for the plaintiff-appellant urges that the words 'Hissadaran gam' occurring in the 'wajib-ul-arz' prepared in the settlement of 1871, Ex. P. 1, mean persons entitled to any interest in the joint lands of the village or to take part in the administration of its affairs. In my opinion, there is no justification to assign to the words 'Hissadaran gam' occurring in the wajib-ul-arz, Ext. P. 1, the meaning given to the word 'co-sharer' in Section 4 (1) read with Section 4 (7), Agra Pre-emption Act, 1922. That Act came into force in the Province of Agra on 17-2-1923, while village Salimpur was included in the province of Delhi with effect from 1-4-1915.

9. Section 72, U. P. Land Revenue Act, 1901, hereinafter referred to as the Act, provides inter alia that if, in a mahal in which the land is held in severally, the Settlement Officer has decided to make the settlement with all the proprietors under Section 65, any co-sharer refuses or fails, within thirty days from the date of the declaration by the settlement Officer under Section 64, to accept the assessment so declared, the Settlement Officer may transfer the share of the person so refusing or failing, for a term not exceeding fifteen years, to all or any of the remaining co-sharers in the mahal who may be willing to accept the transfer.

10. From the provisions of Section 72 of the Act it appears that the proprietors holding land in a village in severally are regarded as co-sharers in the village within Section 72 of the Act.

11. Section 142 of the Act provides that all the proprietors of a mahal are jointly and severally responsible to Government for the revenue for the time being assessed thereon, and all persons succeeding to proprietary possession therein, otherwise than by purchase under Section 160, shall be responsible for all arrears of revenue due at the time of their succession. The Explanation appended to that section defines the word 'proprietor' to mean inter alia any person in proprietary possession for his own benefit.

12. Indisputably, Gurbachan Singh on the date of the sale was a proprietor within the meaning of Section 142 of the Act. If so, Gurbachan Singh was a person who was responsible under Section 142 of the Act for the revenue for the time being assessed upon the mahal and that being the case, he became a person who would be a defaulter within the meaning of Section 146 of the Act if the land revenue in respect of the land held by him was not paid. Clearly Gurbachan Singh should be regarded to be a co-sharer in the village.

13. In a long course of decision dating from 1889 the Allahabad High Court has held that where a person purchased a plot of land situate within a village, he was to be deemed a 'Hissa-dar gam' for the purposes of pre-emption.

14. In -- 'Safdar Ali v. Dost Muhammad', 12 All 426 (F B) the wajib-ul-arz of a village gave a right of pre-emption to 'co-sharers in the mahal.' One of the co-sharers brought a suit for pre-emption which the defendant resisted on the ground that he also was a co-sharer in the mahal, and the plaintiff had, therefore, no preferential right. This contention was based on a former purchase by the defendant under a deed of sale executed by a co-sharer and comprising an isolated plot of land in the mahal. On these facts, a Full Bench of five Judges of the Court found that the defendant-vendee had become a co-sharer in the mahal prior to the date of the purchase which was in question in the suit and, therefore, the plaintiff had no preferential right of pre-emption.

15. In -- 'Dakhni Din v. Rahim-un-Nissa'. 16 All 412, Edge C. J. and Banerji J. found that the word 'co-sharer' occurring in the wajib-ul-arz giving a right of pre-emption to co-sharers in the village included a person who had acquired lands in the village. In that case the decision that the vendee was a co-sharer in the village within the meaning of the wajib-ul-arz proceeded on the basis that the defendant-vendee was a person who was responsible under Section 146 of Act No. XIX of 1873 for the revenue for the time being assessed upon the mahal. Section 146 of Act No. 19 of 1873 corresponded to Section 142 of the Act.

16. In -- 'Ali Husain Khan v. Tasadduq Husain Khan', 28 All 124, Banerji and Richards JJ. found that the owner of isolated plots of land in a village is a co-sharer in the village and may as such possess rights of pre-emption, although he does not own a share in the zamindari of the village.

17. In -- 'Ram Gobind Pande v. Panna Lal', AIR 1924 All 305, Kanhaiya Lal and Lindsay JJ. held that a person who had purchased a plot of land situated within a village possessed the status of 'hissedar mauza' within the meaning of the 'wajib-ul-arz.'

18. Indeed, it was said in -- 'Dakhni Din v. Rahim-Un-Nissa', 16 All 412 that the word 'hissedar' occurring in the 'wajib-ul-arz' has the same meaning as the word 'proprietor' occurring in Section 146 of Act No. XIX of 1873.

19. From what I have said above, it follows that the purchaser of an isolated plot of land in a village is a 'hissedar' within the meaning of the 'wajib-ul-arz' giving a right of pre-emption to 'hissedaran gam'. That being the situation of matters, I think that the Regular Second Appeal No. 2649 was correctly decided by Falshaw J.

20. In the result, I would dismiss with costs Letters Patent Appeal No. 32 of 1949.

Weston, C.J.

21. I agree.


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