Chariter Dusadh and Others vs Bhagwati Pandey

Saunders, J.—This second appeal is by the defendants in a suit for pre-emption. This suit was dismissed by the Court which tried it, but it was decreed by the District Judge of Sarah on an appeal by the plaintiff. Three plots of land described in the Record-of-Rights as rent free birt brahmotar were sold by defendant 2 to defendant 1. Adjoining these three plots are three other plots of the same description belonging to the plaintiff. It appears that the six plots were all once Comprised in a birt acquired long ago by an ancestor of the plaintiff and defendant 2. It Was found by the first Court that the plaintiff had been aware of negotiations for the sale of the three plots of defendant 2 and that before they were sold to defendant 1 he had already declined to purchase them himself. The lower Court of appeal however found that the plaintiff did not bear of the sale of the land to defendant 1 until about a year later and held that the other considerations were immaterial as the plaintiff''s right of pre-emption could be exercised only when the sale was complete. It has also been found by the learned District Judge that the ceremonies required for pre-emption were duly performed by the plaintiff.

It is contended on behalf of the appellants that the plaintiff''s suit ought to have been dismissed because in the first place a birtdar is hot the owner of land, and therefore has no right to pre-empt; and, secondly, because even if the plaintiff possessed that light he waived it when he failed to avail himself of the opportunity given to him by defendant 2 to buy the land. The first of these contentions prevailed in the trial Court, but it was not accepted by the learned District Judge. The argument is that a birtdar is not the owner of the land because he is not the proprietor of it according to the definition of the term proprietor in Section 3(2), Ben. Ten. Act, and that not being a proprietor the interest he has in the land must be of a subordinate character; in fact that of the tenant which is what he is shown to be in the Record-of-Rights. It is contended that being a mere tenant he cannot have the right he claims even if the tenancy is permanent, heritable and transferable.

The learned advocate referred to the cases of Mohammad Jamil v. Khub Lal Raut 1921 Pat 164, Dhirakshan Singh v. Triloki Prasad Singh 1923 Pat 217 and Mt. Bibi Saleha v. Haji Amiruddin 1929 Pat 214, in which it was held that a mukarraridar has no right of pre-emption. As to that there can be no doubt. In the words of Sultan Ahmad, J., in the first of the cases cited:

It is Well established on the text as well as on the case law that the pre-emptor must have the milkiat or ownership in the property on account of which he claims the right of pre-emption.

Clearly a mukarraridar who pays rent for his land, cannot be the owner of it. There seems however to be no reason why a person may not be the owner of property so as to be entitled to pre-empt and yet not be a proprietor according to the definition of the terms in the Ben. Ten. Act. The word "milk" is translated in Fallon''s Dictionary to mean "landed property; rent-free land." According to the Guide and Glossary to the Survey and Settlement Operations a "birt" is a rent-free grant in consideration of religious services, past, present or future, and it is stated that such grants are almost invariably heritable and transferable even to persons who cannot be expected to keep up the particular observances for which the grants were originally made. There seems to be, therefore no reason to doubt the correctness of the view taken by the learned District Judge that the birt in question was an absolute gift.

The fact that the birtdar was treated as a tenant in the Record-of-Rights is not incompatible with the conception of his own ownership of the land. As the learned District Judge has observed:

There is nothing to prevent the proprietor of a village from making an out and out gift of a specific area of land in his possession and forming part of his zamindari, and if such a gift is made the donee must be shown in the Record-of Rights as a tenure-holder because his name cannot appear in the proprietor''s khewat for the simple reason that he has no specific share in the village or in the touzi.

The learned District Judge found that there was nothing to show that the proprietor of the village had retained any rights at all in the birt land. It is contended on behalf of the appellants that the ownership of the birt land is not absolute because it is to be presumed that the proprietor has the underground rights.

It is not however necessary to consider whether ownership in order to carry with it a right of pre-emption must include a right to minerals because in the present case it is not suggested that there are any minerals in the land. As the land is in Saran their existence is highly improbable.

As to the second contention of the appellants, the question whether the right was waived or not is mainly a question of fact. The appellants did not attempt to establish a case of waiver in their written statements and the Courts were not invited to consider the case from this aspect. It is stated in the written statement of defendant 1 that when the plaintiff refused to buy the land the other defendant bought it. Similarly it is stated in the written statement of the latter defendant that:

the plaintiff was fully apprised of the fact that this defendant had asked the plaintiff also to purchase the same but when the plaintiff refused the defendant sold the disputed land for a proper price to defendant 1.

It does not appear to have been the case of the defendants that the plaintiff knew that the land was about to be sold to a particular person for a specified sum. His knowledge as to a proposal to sell was invoked in the written statements in support of a plea of limitation, the contention being that having been aware of an intention to sell on the part of defendant 2 and having refused to purchase the land, it should be presumed that he learnt about the sale long before the date of knowledge alleged by himself. There was no issue in the trial Court as to waiver.

The issues related only to the questions whether the plaintiff had a right to pre-empt, whether the suit was barred by limitation, whether he had duly performed the requisite ceremonies and as to the amount for which the property was sold. The plaintiff''s knowledge regarding a proposal to sell was one of the grounds on which the trial Court found that the suit was barred by limitation, the Court accepting the defendants'' contention that he must have known about the sale before the date on which, according to his own story, he received information of it. The evidence was considered from the same point of view by the lower appellate Court. A definite plea of waiver finds no place even in the memorandum of appeal to this Court. The finding of the learned District Judge as to the plaintiff''s knowledge about the negotiation for the sale being immaterial is challenged in the memorandum of appeal; but the reason why it stated to be incorrect is not that the plaintiff by refusing to buy the land had waived his right to pre-empt, but that in the circumstances the Court was not justified in believing that the plaintiff first came to know of the sale so long afterwards.

Clearly there could be no waiver by the plaintiff of his right if he did not know to whom the property was to be sold because, as has been stated by Mahmood, J., in the case of Gobind Dayal v. Inayatullah (1885) 7 All 775, the object of the right is to prevent the intrusion not of all purchasers in general, but only of such as are objectionable from the pre-emptor''s point of view. There is no finding of the Courts below, nor did the pleadings call for any finding, that the plaintiff was in possession of this information. The case of Arjmand Khan v. Shankar Lal, 1925 Lah 369 and Muhammad v. Muhammad All, 1926 Lah 243, relied upon by the learned advocate do not help the appellants.

In the former case the person claiming the right had already assented to a sale in favour of a particular person, and in the latter case the plaintiff had stated that he could not afford to buy the land and that the vendor was at liberty to sell it to the person to whom he proposed to sell it or to any other person. On the other hand it was held in Kanhai Lal v. Kalka Prasad, (1905) 27 All 670, that in order to debar a party entitled to pre-empt from exercising his right an opportunity to purchase must be given when a definite agreement to purchase at a fixed price has been entered into with a stranger. As I have said it does not appear that such an opportunity was given to the plaintiff in the present case. The appeal must be dismissed with costs.

Fazl Ali, J.

I agree.