Murli Tewari vs Mohammad Idris and Others

This is a plaintiff''s appeal arising out of a suit for pre-emption. The defendants had acquired under a deed of gift a share in the same mahal but in another khata khewat. The plaintiff is a cosharer with the vendor in the same khata khewat in which the property sold is situated. The Courts below have held that a khata khewat cannot be taken to be a subdivision of a mahal within the meaning of Section 12, Clause 2, Pre-emption Act. In our opinion they are wrong. The khewat shows that there are separate khatas assigned to separate groups of co-sharers which have specific areas fixed and on which Government revenue is separately assessed. There cannot be the least doubt that they are smaller sub-divisions of the same mahal. The plaintiff being a co-sharer in a smaller subdivision has undoubtedly preference over the defendants. We accordingly allow this appeal and setting aside the decree of the lower appellate Court remand the case to that Court under Order 41, Rule 23 for the determination of the issues that have remained undecided and for disposal according to law.