Koju vs Kumbha Ram and another

P.C. Pandit J.—This order, will dispose of two connected Regular Second Appeals Nos. 494 and 921 of 1935.

On 31st of July, 1962, Jawala and Sohana sold the property in dispute situate in village Pirthala, district Hissar, to Koju for Rs. 5000/-. This sale led to two pre-emption stilts, one by Kumbha on the ground that he was a tenant under the vendors and the other by Amar Nath who based his right of pre-emption on his being the soft of the vendor Jawala and nephew of the other vendor Sohna. Kumbha also alleged that the sale had actually taken place for Rs. 2000/-, While Amar Nath did not contest the payment of the sale price mentioned in the sale deed.

Both these suits were contested by the vendee on a number of allegations, but we are, in the present second appeals, concerned only with one of them, namely that he was a Harijan or a member of the Scheduled Caste or Tribe and, therefore, the sale in his favour was not pre-emptible. It may be mentioned that both the suits were consolidated in the trial Court.

The trial Judge earns to the conclusion that the vendee was a member of the Schedule Caste and as such both the suits for possession of the land by pre-emption were not competent He, accordingly, dismissed them.

When the matter went in appeal before the learned Additional District Judge, Hissar, he reversed the finding of the trial court on that point and decreed the suits. Since the right of Amar Nath was preferential than Kumbha, the decree passed by the learned Additional District judge was that the latter would pre-empt the land only if the former did not pre-empt it within the time allowed to him Amar, Nath''s suit was decreed on payment of Rs. 5000/-, which was the sale price, plus Rs. 628/50 Paise, which represented the registration charges, within two months of the date of the passing of the decree. In case he failed to deposit the said amount within the period allowed, his. suit would stand dismissed with costs. In the event of such default, Kumbha would, be entitled to pre-empt the sale on the deposit of the same amount within three months of the date of the decree failing which his suit Would also stand dismissed with costs. Koju has filed the present two appals against the decrees in both the suits.

The only point for decision in these appeals in whether Koju was a member of a recognised Scheduled Caste, the sale in whose favour was not pre-emptible.

Section 8(2) of the Punjab Pre-emption Act, 1913, authorises the State Government to declare, by notification, that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales, no right of pre-emption or only such limited right as the State Government may specify, shall exist. By virtue of these powers, the State Government had issued a notification in the Government Gazette dated 16th February l952 to the effect that no right of pre-emption would exist with respect to urban and village immovable property as well as agricultural land when purchased by any member of the Scheduled Castes mentioned in Part X of the Schedule to the Constitution (Scheduled Castes) Order, 1950. It is common ground that the vendee was a ''Chamarwa Brahaman''. He resided in the locality of chamars and performed Ceremonies in the chamar community on ceremonial occasions as was done by Brahamans with respect to the other-communities. The contention raised by the Learned Counsel for the pre-emptor was that chamarwa Brahaman was not shown in Part X of the schedule referred to above and, consequently, the sale in his favour pre-emptible. The argument of the, Learned Counsel for the vendee, however, was that his elient was covered by clause 2 of the Constitution (Scheduled Castes'') Order 1950 read with entry No. 9 in part X of the schedule. They read as under :

Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes, specified in Parts I to XIII of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Gashes so far as regards members thereof resident in the localities specified in relation to them in those Parts of that Schedule.

Chamar, Jatia Chamar, Rehgar, Raigar, Ramdasi or Rayidasi.

His submission was that Chamarwa Brahaman was a part of or group within the castes or tribes mentioned in entry No. 9.

The trial Judge held that it had been proved from the evidence produced by the vendee that the Charmarwa Brahamans were a part of a Chamars who were members of the Scheduled Castes as mentioned in the schedule. He further remarked that it had not been shown by the pre-emptors that the vendee was not a Ghamar. The sale in his favour was, therefore, not pre-emptible. The learned Additional District Judge, on the other hand, was of the view that clause 2 of the order mentioned above prescribed that only castes, etc. or parts of or groups within the castes or tribes specified in the schedule would be deemed to be scheduled castes. In other words only the particular group or part mentioned in entry No. would be considered. If a caste had several groups or sub-divisions, then all those groups of sub-divisions would not be scheduled castes, unless they were mentioned by name in the entry He was further- of the that the vendee was not permitted to show by other evidence that his caste was out of the Chamars, although he was in fact railed Chamarwa Brahaman. It was necessary that Chamarwa Brahaman should have been mentioned in the entry. Since it was not so mentioned the sale in favor Koju could not be considered to be sale in favour of a schedule caste which was not pre-emptible.

A plain reading of clause 2 mentioned above would show that castes, races, tribes and parts of or groups within castes or tribes which were specified in parts I to XIII of the schedule would be deemed to be scheduled castes. In other words, the parts of or groups within the castas or tribes have also been specified in the schedule. The reading of this clause docs not show that what is mentioned in part X of the schedule are only castas, races or tribes. Part X includes not only castes, races or tribes, but also parts of or groups within castes or tribes It is only those parts of or groups within castes or tribes which are specified in the part, which are recognised as schedule castes. If there is any other part of or group within the castes or tribes which is not mentioned in the Part, the same would not be deemed to be a scheduled caste, take for instance, entry No. 9, in which are mentioned Chamar, Jatia, Chamar, etc. If the argument of the Learned Counsel for the vendee was correct then there was no necessity to include Jatia Chamar in this entry, because it was a part of or group within Chamar which was mentioned in the entry. The specific mention of Jatia Chamar in the entry shows that the part of or group within the Chamars, which are recognised as scheduled castes, are also stated in the entry itself. It is also note-worthy that if Jatia Chamar, ''Rehgar, Raigar, Ramdasi or Ravidasi were not parts of or groups within Chamar mentioned in entry No. 9, then they would have been given separte serial numbers in part X of the schedule. Thus, against each entry, the parts of or groups within the caste or tribe mentioned therein, which are recognised as scheduled castes, have also been included. To put it differently, the list in part, X is exhaustive., These are the Only castes, races or. tribes or parts of or groups within castes or tribes which are recognised as scheduled castes. Nobody is permitted to prove by evidence that his caste, though not mentioned in the relevant entry, is a part of or group within the caste mentioned in the said entry. In the instant case, the vendee wanted to prove that though he was a Chamarwa Brahaman but he was a part of or group within the ''Chamar'' mentioned in entry No. 9. Admittedly Chamarwa Brahaman does not figure in the said entry. It means this part of or group within ''Chamar'', even assuming for the sake of argument that it is so, was not recognised as a schedule caste in part X. Under these circumstances, there is no escape from the conclusion that the vendee does not belong to the recognised schedule caste, the sale in whose favour was not pre-emptible. That being so, there is no merit in these appeals which are dismissed. In the circumstances of the case, however, I will leave the parties to bear their own costs throughout.