Sarjug Singh vs Jagmohan Singh

B.K. Mullick, J.—The plaintiff, in exercise of his right of pre-emption, claims to purchase from defendants Nos. 3 and 4 a two-anna share in Mauza Bazidpcre which these defendants have sold by kabala to defendants Nos. 1 and 2. It is admitted that the Mauza bears Tauzi No. 780 and that the plaintiff is the owner of a two-anna share in it. In the survey and settlement proceedings it was found that the Tauzi covered an area of 101 bighas 11 roods and that it has been divided into five shares which have been entered in 5 Khewats numbered 3/1 to 3/5. The plaintiff''s interest has been recorded under Khewat No. 3/2 while that of defendants Nos. 3 and 4 has been entered in Khewat No. 3/5. An area of 4 bighas and odd has been retained in the joint possession of all the co-sharers of the Mauza and the question is whether, in these circumstances, the right of pre-emption exists.

The Munsif found on a careful examination of all the facts that the plaintiff had separated his share so completely from that of defendants Nos. 3 and 4 that he could not be allowed to pre-empt, and he relied upon a number of authorities in the High Court of Allahabad of which the case of Munna Lal and Another Vs. Hajira jan and Another, , is an example.

These authorities, however, all deal with perfect and imperfect partitions under special laws in the United Provinces and are not of any assistance for the purposes of the case now before us. The general principle that after a perfect partition has been made by the Revenue Authorities, the right of pre-emption no longer exists between the former co-sharers is one which does not apply to this case. Here, the liability to pay Government revenue is still joint and a portion of the estate consisting of roads, nullas and water-courses has not yet been partitioned. The question is, whether to such a case as this the principles laid down by their Lordships of the Privy Council in 16 CWN 553 (Privy Council) apply.

The Subordinate Judge, disagreeing with the Munsif, considers that they do. On the other hand, the learned Vakil for the defendant-appellants before us relies upon Byjnath Singh v. Dooly Mahtoon 11 W.R. 215. In that case the liability to pay Government revenue was still joint but the plaintiff had divided off his own share by regular metes and bounds and made himself in every respect independent of his coparceners so far as it was in his power to do so. This case was cited in argument before their Lordships of the Privy Council and it was urged that this joint liability does not constitute the co-parcenary contemplated by the Muhammadan Law. Their Lordships did not accept this submission and held that joint liability does not cease in the case of any co-sharer until his particular share has been partitioned by the Revenue Authorities. In my opinion the learned Subordinate Judge was right in holding that the case under consideration was covered by this decision.

The next point that arises is as to the performance of the demands necessary to establish a right of pre-emption. It is admitted that the Talab-i-Moasibat was duly made. The difficulty turns upon performance of the Talab-i-Istishhad. The Munsif has found that, although this demand was made by the plaintiff in the presence of witnesses, there was no express reference to the fact that the immediate claim, or Talab-i-Moasibat, had been duly made.

It was contended before us by the learned Vakil for the appellants that it is necessary under the Muhammadan Law that not only this demand should be made in the presence of witnesses but that they should be asked to bear testimony to the declaration that the demand had been duly made. This is in conformity with the views expressed by the text book writers and has been affirmed by their Lordships of the Calcutta High Court in the Full Bench decision in Rujjub Ali Chopedar Vs. Chundi Churn Bhadra and Others, . In that case the point referred was whether it was necessary that the pre-emptor should declare that he has made the Talab-i-Moasibat and, at the same time, should invoke witnesses to attest it. The answer of their Lordships was unanimously in the affirmative. The words given in the Hedaya, Grady, page 556, are as follows: "Such a person has bought such a house of which I am the Shafi. I have already claimed my privilege of Shufa and am now again claiming. Be, therefore, the witness thereof."

The authorities upon this point have been also discussed by their Lordships of the Allahabad Court in Muhammad Ahmad Said Khan Vs. Madho Prasad and Others, . On the other hand our attention has been drawn to the case of Chatu v. Husain Bokhsh A.W.N. (1893) 101, where their Lordships of the Allahabad Court appear to have held that the mere presence of the witnesses was sufficient and no specific invocation was necessary.

It is to be observed, however, that this ruling has been practically dissented from in Mubarak Husain v. Kaniz Bano 27 A. 160 : A.W.N. (1904) 201 : 1 A.L.J. 569. The view taken by the learned Munsif, therefore, seems to be right. But upon the question of fact the learned Subordinate Judge has come to a finding which concludes the matter. Disagreeing with the Munsif, he has found that the plaintiff did call upon the witnesses to bear testimony to the fact that he had performed the previous ceremony.

Now, although the learned Munsif has disbelieved the plaintiff upon this point, it was open to the learned Subordinate Judge to take a contrary view and his finding is conclusive in second appeal. The result, therefore, is that the decree made by the learned Subordinate Judge is correct.

With regard to the right of irrigation and the right of vicinage, the claim to pre emption does not seem to have been pressed before the Subordinate Judge on these grounds. The appeal, therefore, will be dismissed with costs.

Jwala Prasad, J.

I agree to the order proposed.