Sital Singh vs Baij Nath

Mahmood, J.—The village Musafirpur consists of three pattis:--

thus making up the aggregate of 20 biswas of the whole village which constitutes one and the same mah�l.

The mah�l appears to have been divided only by imperfect partition, and the estate therefore is an imperfect pattid�ri zam�nd�ri tenure, and one and the same wajib-ul-arz governs the mah�l, and there is only one lambardar of the whole mah�l. One Lala Singh owned a 1 biswa 12 biswansis share in patti III, and in the same patti one Bhoja Singh owns a share, whilst the plaintiff Sital Singh is a sharer in patti I.

In execution of a Revenue Court''s decree for arrears of rent, held by one Tulshi Ram against Lala Singh the latter''s whole share of 1 biswa 2 biswansis 5 kachwansis in patti III was sold by auction on the 20th August 1886, under s. 177 of the Rent Act (XII of 1881), and the highest bidder was the defendant, Baijnath, whose bid of Rs. 100 concluded the sale. The plaintiff-respondent, Sital Singh, joined Bhoja Singh in asserting their pre-emptive right as co-sharers in the mah�l under s. 188 of the Revenue Act (XIX of 1873), and deposited the sale consideration. The Revenue Court, however, rejected the plaintiffs'' pre-emptive claim and confirmed the sale in favor of the defendant, Baijnath, by its order of the 17th September 1886.

The present suit was instituted on the 16th August 1887 by Sital Singh and Bhoja Singh jointly in the Civil Court with the object of setting aside the Revenue Court''s order of the 17th September 1886, and obtaining a declaration that the plaintiffs, by virtue of their right of pre-emption, were entitled to the benefits of the auction-sale of the 20th August 1886, in preference to the defendant, Baijnath, purchaser at that auction, and they also prayed for recovery of possession of the property sold on payment to the defendant of Rs. 100 purchase-money already deposited by them.

The suit was resisted by the defendant purchaser mainly upon the ground that, the property in suit not being an entire patti of a mah�l, but only a portion of a patti, no right of pre-emption accrued in favor of the plaintiffs by the auction-sale of the 20th August 1886, and that the plaintiffs could not maintain the suit as they had no pecuniary means to purchase, their own property being under mortgage.

The Court of first instance held that s. 177 of the Rent Act read with s. 188 of the Revenue Act restricted the right of preemption in respect of auction-sales to entire pattis and did not extend to cases such as the present in which only a portion of the patti was sold. For this view that Court relied upon a Division Bench ruling of this Court in Muhammad Faruk Vs. Narain Singh, and dismissed the suit. Upon appeal, the lower appellate Court, distinguishing the case from that ruling, held that the preemptive right provided by s. 188 of the Revenue Act (XIX of 1873) applied also to auction-sales of portions of pattis, and that the suit was maintainable by Sital Singh as co-sharer of patti I, but that the other plaintiff, Bhoja Singh, being a co-sharer in patti III, of which a portion was sold, was not entitled to pre-emption, as he might have saved the property from sale by paying up the money due under Tulsi Ram''s decree for arrears of rent. The lower appellate Court, therefore, dismissed the suit so far as Bhoja Singh was concerned, but decreed it fully in favor of Sital Singh alone.

From the lower appellate Court''s decree two appeals have arisen; one by the plaintiff, Bhoja Singh, (S.A. No. 998 of 1888), and the other preferred by Baijnath, defendant, upon the contention, first, that co-sharers have no right of pre-emption in respect of sales udder the Rent Act; secondly, that s. 188 of the Revenue Act applies only to sales of entire pattis; and, thirdly, that since the lower appellate Court has found that one, of the plaintiffs, Bhoja Singh, was not entitled to pre-emption, it should also have held that the plaintiff-respondent, Sital Singh, had also forfeited his right of pre-emption by joining the aforesaid Bhoja Singh as plaintiff in the suit.

In dealing with this contention it is necessary to consider, in the first place, whether under the general law, as distinguished from Specific legislative enactments, any right of pre-emption arises in respect of compulsory sales, such as those which take place by public auction in execution of decrees or for arrears of Government revenues. I am of opinion that this question must be answered in the negative, whether the right of pre-emption in respect of such sales is claimed under the Muhammadan law, the compact of the wajib-ul-arz, or local usage and custom. Such sales are not the result of any private contract to which the person whose property is sold is a party. They are the result of an authority conferred by the legislature upon the Courts for the purposes of awarding remedies against those who have failed to perform their pecuniary obligations. But for the specific interference of the Legislature such a power to sell the property of the debtor against his will could not be exercised by the Courts or the revenue authorities, and it would appear from general principles that when, in so interfering, the Legislature has framed specific rules, statute-law takes the place of general law, if any, in pari materi� and excludes the application of the ordinary law of sale on account of the exigencies of procedure. The object of such sales is to secure satisfaction of debts by well defined means and methods calculated to achieve the object with certainty and expedition, and it seems clear that the object would be frustrated if such sales were hampered by the rules which govern private sales. The Legislature, however, in so interfering has not been heedless of the right of pre-emption. Under the rules of procedure compulsory sales take place after a public proclamation, which, being an act of the Court or revenue authority, is taken to be sufficient notice to the pre-emptors, along with the public at large, to come forward and purchase the property; and it seems reasonable to suppose that those who do not appear to bid at the auction sale have no wish to purchase the property. These considerations seem sufficient to render the ordinary law of pre-emption inapplicable to sales by public auction in execution of decrees, and this view has received judicial sanction.

So long ago as 1854, three learned Judges of the late Sudder Dewanny Adawlut of Agra, in Chikhoree Singh v. Hukeem Nujuf Ali N.W.P.S.D.A. Rep., 1854, p. 40, concurred in observing that "the right of pre-emption supposes an act of volition on the part of the vendor, a principal inapplicable to a transaction of compulsory sale made by any authoritative order or injunction, and that the incident of a public sale creates a new element beyond the ordinary scope of such right." Soon after, in 1855, the same Court, in Mudar Buksh v. Muhummud Hussun N.W.P.S.D.A. Rep., 1855, p. 597, took occasion to point out that their ruling was not to be understood to have repudiated the right of pre-emption in respect of compulsory sales when such right had been specifically created by statute. Referring to the earlier case the learned Judges said:-- "the obvious intent of the whole judgment is that ordinarily the right of pre-emption is dependent on the voluntary character of the transfer made by the owner, but that Act I of 1841 has extended the principle to sales in execution of decrees made under the provisions of that Act, which are of a special nature, applying only to a particular class of tenures, and that they cannot be held to include sales of portions of zumeendaree tenures, and that sales of the latter description, were not, either according to law or the custom of the country, subject to the law of pre-emption." The same view was adopted in Sah Koondun Lal v. Ram Buksh N.W.P.S.D.A. Rep., 1860, p. 194; and in Baboo Ram Narain Singh v. Syud Sadik Ally N.W.P.S.D.A. Rep., 1863, Vol. I, p. 325 a Full Bench of the same Court (with a majority of three out of five Judges) held that where the sale was a compulsory one no claim of pre-emption could be founded either on the wajib-ul-arz or the Hunammadan law, and in the case before them, the mauza and holding having been declared to be separate mah�ls, the plaintiff''s claim of pre-emption was untenable or either of the grounds on which it was laid. The same rule was adopted in Seth Luchmee Chund v. Mussumat Kesur Buhoo N.W.P.S.D.A. Rep., 1865, p. 139 where it was again pointed out that the rule was not to be understood as negativing the right of pre-emption in respect of compulsory sales where such right has been created by special enactments such as Act I of 1841. A similar view was adopted by the Calcutta High Court in Abdool Juleel v. Khellat Chunder Ghose 10 W.R.C.R., 165; 1 B.L.R.A.C., 105 where the learned Judges, with reference to the ground taken by the special appellant that he was entitled as a co-sharer under the general law of pre-emption to have the property sold to him, observed that where property is sold by public auction at a sale in execution of a decree and the neighbour and partner has an opportunity to bid for the property as other parties present in Court, the ordinary law of pre-emption cannot apply to such sales. This ruling was followed by the same Court in the later case of Shaikh Ferasut Ali v. Ashootosh Roy Singh 15 W.R. C.R., 455 also in Sheikh Nuzmoodeen v. Kanye Jha 1 Mar., 555; 2 Hay, 651 where the rule was carried further by holding that even where the right of pre-emption between two co-sharers was based upon an express ikrar or agreement between them, sale in execution of a decree could not render the right enforceable, as it was the act of the Court, though such right might have been enforced if the transfer had been by private sale.

It may therefore be taken as a rule of law settled by a long and uniform course of decision that a compulsory sale, such as a sale in execution of decree or a sale under an authoritative order of the revenue authorities for arrears of Government revenue, does not render pre-emption enforcible, whether such right is claimed under Muhammadan law, the terms of the wajib-ul-arz, or on the ground of local custom or private contract; but that such compulsory, sales being the creation of statute-law do furnish occasion for the exercise of the pre-emptive right where such right is provided, subject to the rules and restrictions prescribed by those Legislative enactments themselves. Thus, for sales in execution of Civil Courts'' decrees, we have the provisions of s. 310 of the CPC (Act XIV of 1882) which lays down that "when the property sold in execution of a decree is a share of undivided immovable property, and two or more persons, of whom one is a co-sharer, respectively advance the same sum at any bidding at such sale, such bidding shall be deemed to be the bidding of the co-sharer," this provision being a reproduction, in a very amplified form, of the provisions of s. 14 of Act XXIII of 1861, which was limited to sale of shares of a pattid�ri estate as defined in s. 2 of Act I of 1841. Again, in respect of sales in execution of the revenue Courts'' decrees we have special provision made by s. 177 of the N.W.P. Rent Act (XII of 1881) which runs as follows:--

If it appear to the Board that the debt cannot be recovered under s. 174, or if the sale of the property appear to it advisable on other grounds, it shall order the property to be sold, in which case the sale shall be made under the rules in force for the sale of land for arrears of land revenue, but without prejudice-to the incumbrances (if any) to which such property may be subject.

In this case we are directly concerned with this section, because the auction-sale of the 20th August 1886, in respect of which preemption is claimed, took place in execution of a revenue Court''s decree, and, if this section does not confer a right of pre-emption upon the plaintiffs, the suit, as I have already explained, could not be maintained upon the ground of the general law of pre-emption going beyond the scope of the legislative enactments. Now it is clear that the terms of the section do not in themselves contain any words referring to the right of pre-emption, and if any such right is to be imported it can only be by a literal interpretation of the words "the sale shall be made under the rules in force for the sale of land for arrears of land revenue," as they occur in the section. The first thing then is to determine whether the phrase "the rules in force" includes legislative provisions such as those found in the Land Revenue Act (XIX of 1873) as to sales of land for arrears of land revenue. This point was considered by a Bench of this Court in Muhammad Faruk Vs. Narain Singh, where the learned Judges observed:-- "The only reference to pre-emption in Act XIX of 1873 is to be found in s. 188. It is contended that, as the sale is concluded before the claim to pre-emption can be made, the claim itself it not made under any rules for the conduct of sales. We should, however, be disposed to disallow this contention. It is not, however, necessary on the present occasion to determine the point." In the case now before us the question does require determination and I have no hesitation in holding that the word "rules" as it occurs in the section includes legislative enactments such as those contained in Act XIX of 1873, and that they refer to and include such provision as that enactment makes in respect of the manner in which sales in arrears of Government revenue are to be held and conducted, including the exercise of the right of pre-emption, which forms part and parcel of the matters entrusted to the officer conducting the sale. In Syud Abdool Jaleel v. Kalee Koomar Dutt 6 W.R., Misc. R., 3 the High Court of Calcutta held that the Court executing a decree had no authority to substitute the claimant of pre-emption, under s. 14, Act XXIII of 1861, for the actual purchaser without the consent of the Utter, and that a party claiming a share under the section cited is simply in the position of a party who having a right of preemption has observed the requisite formalities to enable him to assert the right and must resort to a civil suit to obtain the benefit thereof. This view of the law was expressly dissented, from by a Division Bench of this Court in Tasuduk Ali v. Muksud Ali N.W.P.H.C. Rep., 1874, p. 272, where the duties of the officer conducting an execution-sale in which claims for pre-emption under s. 14 of Act XXIII of 1861 are made were considered, and it was laid down that it is incumbent on an officer conducting a sale in execution of a decree of land which is a share of a pattid�ri estate paying revenue to Government, as defined in s. 2 of Act I of 1841, to take notice of a claim made by a person under the provisions of s. 14 Act XXIII of 1861, and to receive the purchase money as a fulfillment of the conditions of the sale, subject to any question which may be raised by any party interested in the sale as to the claimant''s title to advance the claim. The learned Judge said:-- "If the person at whose bid the property has been knocked down pays in the balance of the purchase-money as well as the claimant under s. 14, Act XXIII of 1861, the Court must pass orders for the acceptance of the money paid by the one, and for the return of the money deposited by the other. If, then, the conditions of sale are fulfilled by the claimant only, we see no reason why the sale should not be confirmed in his favour, if the Court be satisfied that he has established his right to advance the claim; and, on the like hypothesis, if there be a contention between a bidder and the claimant as to the right of the latter to advance the claim, we see no reason why the Court should refuse to adjudicate the question and to pass orders accordingly. There is nothing in the provisions of s. 14, Act XXIII of 1861, which discharges the Court executing the decree from the obligation of recognizing the right thereby given. If, after inquiring into the claim, the Court executing the decree considers the claimant''s right doubtful, it would confirm the sale in favour of the bidder, leaving the claimant to his remedy by suit, but, if the right of the claimant be clear, the Court executing the decree is as much bound to give effect to that right as it would be if the question came before it in a regular suit."

In this view of the law I full concur, and, applying it to the present case, I hold that the plaintiffs were entitled to ask the Court executing the decree to recognize them as pre-emptors in respect of the auction sale of the 20th August 1886, that, they having abided (sic) conditions to which the law subjected it as to the pre-emption right, the sale should have been confirmed in their favor, and (sic) the order of the 17th September 1886, having been passed against them by the Revenue Court executing the decree, their pro(sic) lay in a civil suit, such as this, in which they seek to (sic) that order and to obtain possession of the property by statement of their statutory right of pre-emption. Nor should (sic) of this Court in Shib Sahai v. Thika Ram N.W.P.H.C. Rep., 1875, p. 97 be regarding opposed to this view, for in that case, as far as it is intel(sic) from the report of the judgment, it can scarcely be said (sic) learned Judges intended to rule, as the head-note (sic) represent, that after a Court executing a decree has (sic) a pre-emptive claim under s. 14 Act XXIII of through the pre-emptor duly observed the conditions of the sale, he is to be relegated to two separate suits: one for a declaration that he was entitled to the pre-emption of the property by substitution for the auction-purchaser, and another for recovery of possession of such property by enforcement of the right of preemption. The plaintiffs in the present case sued for declaration of their pre-emptive right in respect of the auction sale of the 20th August 1886; they also prayed for setting aside the Revenue Court''s order of the 17th September 1886, whereby their claim was disallowed, and they further prayed for recovery of possession of the property by enforcement of their pre-emptive right. Such a suit seeks all that it could pray for and is in my opinion properly framed, and in no sense either premature or unmaintainable. Whether it succeeds or fails is a matter of the merits which must be considered with reference to the requirements of the law as to the right of preemption in respect of auction sales in execution of the Revenue Court''s decrees in these Provinces.

I have already stated my reasons for holding that the provisions of s. 177 of the Rent Act ((sic) of 1881) refer to and must be read with the provisions of the Land Revenue. Act (XIX of 1873) relating to sales for arrears of Government revenue. S. 150 of that Act provides the various processes for recovery of arrears of revenue, and clause (g) lays down that one of these is "by sale of such patti or of the whole mah�l" and clause (h), going further in the same direction, prescribes another method to be "by sale of other immovable property of the defaulter." Thus there are two kinds of sale contemplated by these two separate clauses. The former is provided for by s. 166 which authorizes the Collector, under certain conditions, to "sell by auction the patti or mah�l in respect of which such arrear is due," and s. 167 provides that "land sold under the last preceding section shall be sold free of all incumbrances, and all grants and contracts previously made by any person other than the purchaser in respect of such land shall become void as against the purchaser at the auction sale." The second class of sales to which clause (h) of s. 150 relates is provided for by s. 168 which runs as follows:--

If the arrear cannot be recovered by any of the above processes, and the defaulter owns any other mah�l or any share in any other mah�l or any other immovable property, the Collector of the District may proceed against such mah�l or other immovable property as if it were the land on account of which the revenue is due, under the provisions of this Act:--

Provided that no other interests save those of the defaulter alone shall be so proceeded against, and no incumbrances created, or contracts entered into by him in good faith, shall be rendered invalid by such proceeding.

We are directly concerned with this section in this case, as it was admitted in the course of the argument that the auction sale of the 20th August 1886, was not such as s. 166 of the Act contemplates, and it must therefore have been held under s. 168. This being so, it is important to notice: first, that the section contemplates sale of "any share in any other mah�l," that is, any fractional share, and, secondly, that "no other interests save those of the defaulter alone" can pass by such sale.

Sections 169 to 187 lay down various rules as to the manner in which sales by auction are to be held and the purchase money is to be deposited and other similar matters, and then comes s. 188 under which pre-emption is claimed in this case. The section requires close consideration, as its provisions are the solitary ground of the plaintiff''s right of pre-emption, and, as I have shown at the outset, if the case falls beyond the exact scope and purview of that section the claim for pre-emption must necessarily fail, as no other statutory authority is relied upon, and the general law of pre-emption will not apply to compulsory sales. The section runs as follows:--

Where any land sold under s. 166 is a patti of a mah�l, any recorded co-sharer, not being himself in arrear with regard to such land, may, if the lot has been knocked down to a stranger, claim to take the said land at the sum last bid: provided that the said demand of pre-emption be made on the day of sale and before the officer conducting the sale has left the office for the day, and provided that the claimant fulfill all the other conditions of the sale.

In regard to the interpretation of this section the argument on behalf of the defendant-appellant, Baijnath, may be analyzed under three heads, namely:

(1) that the pre-emption provided by the section applies only to sales under s. 166 and not to sales under s. 168 such as the sale in this case.

(2) that it applies only to sale of a which patti of a mah�l and not to a fractional share of a patti, as the share of Lala Singh which was sold on the 20th August 1886, in respect of which pre-emption is claimed.

(3) that the plaintiff-respondent, Sital Singh, being a sharer of another patti cannot be regarded as a "recorded co-sharer" within the meaning of the section so as to entitle him to pre-emption.

Now in regard to the first of these points, it is true that the section 188 mentions only sales trader s. 166 and the right of pre-emption would at first sight appear to be limited to such sales only, but s. 168, whilst authorizing the sale of "any share in any other mah�l" distinctly provides that such share is to be sold "as if it were the land on account of which the revenue is due, under the provisions of this Act." I am of opinion that, inasmuch as s. 166 is the only provision in this behalf, these words render all the incidents of sales under s. 166, including pre-emption, applicable also to sales under s. 168, with the exception of what is provided in the proviso, namely, that only the defaulter''s interest passes, "and no incumbrances created or contracts entered into by him in good faith shall be rendered invalid by such proceedings," as would have been the case under s. 166, if the body of the section had been allowed to stand without the proviso. The proviso cannot be regarded as a surplusage, and it could be required only if the body of the section imported all the incidents and rules relating to sales under s. 166, which, according to my opinion, it does. I therefore hold that the pre-emption provided by s. 188 applies also to sales under s. 168. The case of Muhammad Faruk Vs. Narain Singh, is not opposed to this view, because all that that ruling, specifically laid down was that the provisions of s. 14 of Act XXIII of 1861 as to the right of pre-emption were limited to sales in execution of Civil Courts'' decrees and could not be extended to sales in execution of decrees passed by the Revenue Courts; and the learned Judges, before expressing any view as to the point now under consideration, began by saying that "if the present Rent Act admits of the assertion of a pre-emptive title in cases of sale in execution of decrees, the suit should have been founded on some section in that Act," and they then, without deciding the question, expressed their inclination to be that the effect of s. 177 of the Rent Act, read with s. 188 of the Revenue Act, was to give a right of pre-emption in respect of sales in execution of decrees of the Revenue Courts. So far therefore the dictum of the learned Judges is entirely in favor of my view, and the judgment shows that they refrained from actually ruling it, because they were of opinion that the phrase "a patti of a mah�l" as it occurs in s. 188 means only an entire patti and not a part only of a patti of a mah�l.

This leads me to the second point as to the interpretation of s. 188 for, upon the strength of the ruling which I have first cited, it has been argued that since the share of Lala Singh sold by auction on the 20th August 1886 was only 1 biswa 2 biswansis 5 kachwansis in patti III, and did not constitute the whole patti, no right of pre-emption under the section could accrue either in favor of the co-sharers of the same patti, such as Bhoja Singh the other plaintiff, (appellant in the connected S.A. No. 998 of 1888), or in favor of the co-sharers of the other pattis, such as Sital Singh, plaintiff-respondent in this appeal. In order to deal with this contention it is necessary, before deciding whether I am prepared to accept the ruling cited, to determine the exact meaning of the word patti as it occurs in s. 188 of the Revenue Act (XIX of 1873).

Now it is no doubt a somewhat regrettable circumstance that that enactment, whilst defining the word "mah�l" in s. 3, omits to define the word "patti," which, as will presently appear, is most important for the purposes of this case. Nor does the Rent Act (XII of 1881) define the term, and the omission is all the more regrettable, because the word does not belong to the language in which these two enactments have been framed. It most therefore be taken that the Legislature intended to leave the word to its natural signification in Hindustani, to which language it belongs, and to be understood in the sense in which it was understood before these two enactments were passed.

This being so, it is necessary to consider the history of the word as a term of the land revenue system, Mr. Justice Field in his learned Introduction to the Bengal Regulations (p. 48) gives an account of the meaning and use of the word. He says:-- "The village system as previously described was in existence in the Upper Provinces when they came under our dominion. Under that system the proprietors or village zam�nd�rs were in general so numerous a body that a settlement with them all would have been highly inconvenient. We therefore continued a practice which existed before our time of selecting one amongst the sharers whose name was entered in the public accounts as the person responsible for the collection and payment of the revenue. The proprietor who is thus a party in his own name to the contract with Government for the payment of the revenue is called the sadar malguzar or lambardar, while the co-sharers or proprietors who are not parties in their own names are called pattid�rs". The learned author then in a foot-note explains the meaning of the term. "Patti is a share, one of the many shares into which the village has been split up by the operation of the laws of inheritance, &c. pattid�r means any holder of a share, but has in practice been limited as above. In a mukammal, or perfect pattidari tenure the lands are held in severalty by the proprietors who are all jointly responsible for the revenue. In a namukammal, or imperfect pattidari tenure, part of the land is held in common, and the profits of this go first to meet the revenue and the remaining part is held in severalty. When one of the co-sharers fails to pay his quota the others have to make it good."

This explanation is inconsistent with the definition of the phrase "pattidari estate" in s. 2 of Act I of 1841, which runs as follows:-- "A pattidari estate in this Act is held to be an estate which consists of two or more separate portions or pattis, or of which there may be proprietors possessed of separate properties and holding direct of the Government but not parties in their own names to the contract with the Government for payment of the public revenue. The proprietor who is a party in his own name is called a lambardar, and the proprietor who is not a party in his own name is called a pattidar."

This section as relating to the tenures in these provinces is best explained in the authorized Directions for Settlement Officers (p. 50) published by the authority of the Local Government in 1858. The work says:-- "Pattidari tenures are those in which the lands are divided and held in severalty by the different proprietors, each of such persons managing his own lands, and paying his fixed share of the Government revenue, the whole being jointly responsible in the event of any one sharer being unable to fulfill his engagements. Imperfect pattidari tenures are those in which part of the land is held in common and part in severalty; the profits from the land in common being first appropriated to, payment of the Government Revenue and the village expenses, and the over plus being distributed or the deficiency made up, according to a rate (or back), on the several holdings."

In the present case it is admitted that the tenure of the village in which the share of Lala Singh sold is situate is an imperfect pattidari and that he was therefore a pattidar. The word occurs in s. 10 of Regulation XXVII of 1795, and it is used there in its natural sense as a convertible term with the English word "sharer" employed with reference to a sharer in a pattidari mah�l. There being nothing to the contrary in the Act itself, or elsewhere, I hold that a broad and general meaning consistent and co-extensive with its meaning in the Hindustani language should be assigned to the word "patti" as it occurs in s. 188 of the Revenue Act, and that "patti" must be taken to mean the share of a pattidar. This interpretation is not inconsistent with the definition of pattidar in s. 2 of Act I of 1841, of which enactment s. 4 provided the right of pre-emption, (in respect of auction-sale of any patti) favor of "any pattidar or other member of the co-parcenary, not being himself in arrear." The mariner in which this provision is understood by the revenue authorities in connection with pre-emption is described in the authoritative "Directions for Revenue Officers" (at p. 249) where it says:-- "In co-parcenary estates a right of pre-emption generally exists on the part of such coparcener in the event of the sale of a share. Provision is made for the enforcement of this right by s. 4, Act I of 1841, on the decision of the sale of any patti by public auction for arrears of revenue, and by the 8th rule promulgated by the Court of Sudder Dewanny Adawlut, under s. 11, Act IV of 1846, on the occasion of the sale of the right and interests of a coparcener in satisfaction of a decree of Court."

But it is contended that the word "patti" can never mean the share of a pattidar, because in clauses (d) and (e) of s. 150 of the Land Revenue Act (XIX of 1873 as also in ss. 154, and 157, the words "patti" and "share" are used as indicating a marked distinction between them, and that that distinction is all the more apparent when it is observed that in clauses (f) and (g) of s. 150 and the corresponding ss. 158 and 166 the word "patti" only occurs to the exclusion of the word "share," in respect of the, power of annulment of the settlement and sale of the patti in respect of which the arrear is due. The distinction is no doubt noticeable, but the contest of the clauses above-mentioned shows that the distinction may have been intended only to differentiate between the share of a zam�nd�ri estate and a patti which is a portion of a pattidari estate. The distinction might refer to the nature of the tenure, that is to the difference between zam�nd�ri estates and pattidari estates, and I do not think it need necessarily be understood to mean that the holding of a pattidar, who by reason of the very nature of the tenure holds his land separately, is not a patti, though speaking literally the holding is a share of the mah�l in which it is situate. But it is further contended that a sale of a share of a patti never takes place for arrears of Government revenue. This contention is based upon drawing a hard and fast distinction between the meaning of the word "patti" and "share" which, as I have explained, are literally and virtually convertible terms for all practical purposes where pattidari estates are concerned, and there is no reason shown why, for purposes of pre-emption, the rules which apply to the sale of the one should not apply to the sale of the other. Moreover, whilst it is true that as a matter of practice and convenience revenue authorities do not ordinarily sell the share of a pattidar by itself by the summary executive process for recovery of revenue, it is an ordinary occurrence that such share is, as a matter of fact, brought to sale in execution of a revenue Court''s decree, and Messrs. Crosthwaite and Smeaton, in their note on s. 166 of the Revenue Act, say that this takes place in nine cases out of ten. We know that this responsibility for payment of revenue by co-parcenary pattidars is of a joint character, and arrears due by any one of them can be recovered by sale of the shares of all. In view of this circumstance when a pattidar makes default in payment of his quota of the revenue his co-pattidars pay up his quota of revenue, and then sue him in the Revenue Court under clause (k) of s. 93 of the Rent Act which provides for "suits by recorded co-sharers to recover from a recorded co-sharer who defaults arrears of Government revenue paid by them on his account." Decrees passed in such suits by the Revenue Court are executed by bringing to sale only the share of the defaulting pattidar, for it is clear that the shares of the other pattidars would not be liable to sale under such decrees. Such sales take place under s. 177 of the Rent Act, and there seems no reason in principle why a right of pre-emption should not accrue to the non-defaulting pattidars. The right of pre-emption is in its very essence a reciprocal right, available to such co-parcenary pattidar in respect of the share or patti of the other, and its object is to exclude strangers from the co-parcenary body. Now, applying this principle to the present case, it must be Admitted that the pattidar Lala Singh whose share was sold could have exercised pre-emption by reason of his pattidari right, if the other pattis were sold; and it would be infringing the essential principle of pre-emption reciprocity if it were to be held that when his share is sold, as it was on the 20th August 1886, the other pattidars would have no right of pre-emption in their turn. I think we are not driven to any such interpretation of s. 188 of the Revenue Act, and indeed, in my opinion, we should be defeating the policy of the statute as to the right of pre-emption if we adopt any interpretation which would have such an effect. The whole policy and object of the right of pre-emption is to prevent the intrusion of strangers in co-parcenary villages such as pattidari estates, and since it is conceded on all hands that the sale of an entire patti would give the right of pre-emption to the owners of other pattis, it seems to me to follow a fortiori that the sale of the lands of a co-pattidar should entitle his co-pattidars in the same patti to exercise pre-emption for the purpose of excluding strangers from that patti.

When I say that any interpretation other than that which I have adopted of the word "patti" as it occurs in s. 188 of the Revenue Act, would defeat the policy of the right of pre-emption itself as indicated by that section, I must not be understood to mean that such a result might not have followed if the word had been clearly-defined in the statute itself, or indeed if any clear definition of it were capable of being gathered from the statute. Nor should I be taken to hold that, even if a precise definition of the word were to be found in the statue, it should not be interpreted in other parts of the statute in the same sense as it should be interpreted in s. 188. I have said enough to show that whilst the word patti did bear an intelligible and definite meaning under Act I of 1845, s. 2, and therefore also in s. 4 of that enactment, the Legislature has chosen to leave it undefined in passing the present Revenue Act. I confess, speaking for myself, that I have exceptional difficulty in understanding this word of my own language in a sense different from what it would have free of doubt had it not been appropriated by the Legislature in passing a law such as the Revenue Act. In so appropriating the word it might have been expected that the mere fact of its being a word alien to the English tongue, in which the enactment was framed, rendered it necessary that it should be specifically defined, so as to make it impossible for those whose duty it is to interpret the statute to have any doubt as to the meaning it bears in any one part of the enactment or another.

But, whilst saying this, I cannot help feeling that the interpretation which I have placed on the word patti as meaning the share of a pattidar, whether he owns a whole patti or not, is an interpretation which cannot be adopted in exactly the same broad sense in some parts of s. 150 of the Revenue Act as in s. 188 of the same enactment. It seems to me clear, for the reasons stated'' by Messrs. Crosthwaite and Smeaton in their edition of the Revenue Act at page 167, that the word patti as it occurs in clause (f) of s. 150 with reference to annulment of the settlement, and as it occurs in clause (g) with reference to sale of such patti under conditions such as s. 166 requires must necessarily mean the whole patti, that is to say, a proportionate share of the mah�l with reference to the assessment of revenue. This, I think, may be conceded, because the word has not been used sufficiently carefully in the enactment to make it bear only one and the same rigid, definite and precise meaning throughout the Act. The exigencies of the rules as to annulment of the settlement or sale in arrears of revenue require the limited interpretation of the word patti as meaning the whole patti; the exigencies of the right of pre-emption require that the same word in s. 188 should be broadly interpreted as meaning the share of a pattidar. There is no inconsistency in thus interpreting the word patti in a limited sense in one part of the statute and in a broad sense in another part of the same enactment, as I will presently explain.

It is undoubtedly a sound rule of interpreting statutes that words must be understood in their ordinary and natural meaning unless there is clear reason to the contrary. Patti is a Hindustani word, and in that language it means a share in a pattidari estate. For example, where there are five sharers the share of each is a patti and each sharer is a pattidar. If the Government, dealing with the settlement of revenue, chooses to deal with all the five in one engagement, that engagement will not, in the absence of express words to that effect, alter the meaning of the word patti or pattidar. The fact of the joint engagement of revenue may regulate the incidents of the engagements, for example that the engagement cannot'' be annulled with one pattidar unless the whole engagement is annulled. But this would not alter the fact that patti means the share of each of the five pattidars who joined in the engagement. This is the natural meaning of the word, and I so understand it in the absence of any express definition to the contrary.

As to this broad meaning being incapable of precise application to the powers of annulment of the settlement under clause (f) s. 150 read with s. 158, and the powers of sale under clause (g) of s. 150 read with s. 166 of the Revenue Act as to the sale of a patti in arrears of revenue I have, little doubt. But the fact that a revenue officer desirous of collecting revenue by either of those processes is founds by the rules to put a restricted in interpretation on the word patti by interpreting it to mean the whole patti does not necessitate my interpreting the word patti to mean that the share of a man who is admittedly a pattidar is not a patti in the sense in which I understand it in s. 188 of the Revenue Act for purposes of pre-emption. If a revenue officer cannot annul a settlement unless it is a patti including the whole area covered by the engagement to pay the revenue, it is not because the word patti necessarily and exclusively means that, but because the nature of the engagement with the Government for the payment of revenue, like a mortgage, necessitates that the breaking up of such an engagement must relate to the whole area. Similarly clause (g) of s. 150 read with s. 166 relates to cases where a revenue officer desirous of realizing the arrears of revenue cannot sell the share of any individual pattidar if that share falls short of what the revenue officer is bound to recognize as the area subject to the engagement for payment of revenue. This is so, not because the word patti means anything other than what it really does, i.e., the share of a pattidar, but because, by reason of the provisions of s. 166 taken with the provisions of s. 167, which clear away prior incumbrances, no such, sale can take place by the summary process without disturbing the whole engagement with all the pattidars who joined in the responsibility for payment of Government revenue. It is therefore in consequence of the exigencies of the engagement for payment of Government revenue that in clauses (f) and (g) of s. 150 and in the corresponding ss. 158 and 166 the word patti must be taken to mean the whole patti. No such reasons apply to sales under s. 168 which must be read with clause (h) of s. 150 of the Act.

Whilst I fully recognize the rule of interpretation that words, when they occur in one and the same statute, must, so far as possible be interpreted in exactly the same meaning, I regret I am differing with the majority of the Bench in holding that that rule of interpretation, which undoubtedly is a sound rule in ordinary cases, is not applicable to this case. I am driven to the conclusion that the interpretation of the word patti in s. 188 so as to exclude the share of a pattidar for the purpose of pre-emption would defeat the whole policy with which we must credit the Legislature in having framed that section with the special object of preventing the intrusion of strangers in pattidari estates.

As to the rule of interpretation that words in a statute should bear the same meaning throughout, unless something to the contrary is shown, I wish to say that it is far from being an inflexible rate and that it amounts only to a presumption for purposes of understanding the meaning of the Legislature. Mr. Maxwell in his work on the interpretation of statutes (at p. 385, 2nd ed.), referring to decided cases, states the rule in the following terms:--

It has been justly remarked that when precision is required no safer rule can be followed than always to call the same thing by the same name. It is at all events reasonable to presume that the same meaning is intended for the same expression in every part of the Act. But the presumption is not of much weight.

The learned author supports this statement of the rule by illustrations furnished by decided cases, and his conclusions are similar to those arrived at by Mr. Wilberforce in his work on statute law from which I quote a passage (at pp. 135--6):--

As the literal meaning of words, and even their usual meaning, can thus be forsaken, it follows, as a necessary consequence, that the same word may have various meanings not only in different Acts of Parliament but sometimes in the same Act or in the same sections. As a general rule the Courts ''endeavour to give the same meaning to the same words occurring in different parts of an Act of Parliament,'' and it is said that ''if the Legislature have used an ambiguous word in a definite sense in one passage of a clause in an Act of Parliament, it is in accordance with the rules of sound construction and legitimate inference to hold the same word is used in the same sense when found in another passage of the same clause. This, however, is not always possible. In one case the Court, in construing the 9th section of 3 and 4 Will. IV., Cap. 27, found that the word ''rent'' occurred seven times in that section, and that in three of those instances it must be read in the sense of ''rent-charges'' in the other four instances in the sense of ''rent reserved.''

This passage is also supported by the authority of decided cases, which show that the rule that a word used in a statute is to be understood in the same sense throughout, is only a rule of presumption, by no means inflexible, and certainly not of such a character as to be irrebuttable by other rules of interpretation founded upon the especial contest of statutory words or reasons and objects wherefore any special section is enacted.

I have dealt upon the exact scope of this rule of interpretation because the point upon which my judgment in this case virtually turns is to show that, unless the word patti as it occurs in s. 188 of the Revenue Act is to be interpreted literally as including the share of any pattidar and in a sense different to, or rather, less restricted than, the sense in which it is used in s. 150, clauses (f) and (g) and in the corresponding ss. 158 and 166, s. 188 need never have been enacted. In other words I have come to the conclusion that in interpreting the word patti in s. 188 there exist enough reasons for interpreting the word in a sense other than that in which, speaking strictly, it occurs in some other parts of the Act.

Now s. 188 provides what? It provides no rule calculated to facilitate the recovery of arrears of revenue. There is not one word in that section which is intended to provide any special process for expediting the collection of revenue. It is also clear from the preamble of the Act that the scope of the enactment was "to consolidate and amend the law relating to land revenue and the jurisdiction of Revenue officers in the North-Western Provinces of the Presidency of Fort William in Bengal." There is not one word in that preamble which would suggest that the enactment was intended, to create a right of pre-emption in connection with sales that may take place in collecting arrears of revenue.

This being so it is of considerable importance for understanding the section to notice that the Legislature, going beyond the exact purview of the enactment as specifically represented by the preamble, chose to frame a rule such as s. 188 contemplates. That rule, if it is to be understood in any sense of having an object in view, must be understood to mean that its aim and end is that in pattidari estates when sales take place in arrears of Government revenue, such sales should be made under conditions which give a chance to of the pattidari of precluding the intrusion of strangers by paying up the amount of money represented by the last bid in a public auction sale. The protection of the integrity of pattidari estates from intrusion by strangers is not a part and parcel of the rules as to collection of revenue, and I say this with emphasis, because I attach to s. 188 an especial importance as representing an especial and definite policy of the Legislature, namely, that in pattidari estates the intrusion of strangers should be obviated.

I will now show by analogical illustration that if the word patti in s. 188 is to be understood in any inflexible or rigid sense so as to mean only the whole patti, and not a share of patti, then it, will be a necessary consequence that s. 188 will be suicidal in itself, because the right of pre-emption, which it provides will be easily defeated by the simple fact that the property brought to sale is not the whole patti, but only the share of a pattidar. The purchaser of such a share, however disliked he may be by the co-pattidars of the pattidars whose rights are sold, may intrude upon the coparcenary with impunity, and not only in the patti of which he has bought a share, but also thus acquire a pre-emptive right in other portions of the mah�l. The case may be thus illustrated:--

Suppose that the words of s. 188 were to begin by saying "where any property sold under s. 166 is a house" the question would arise whether the sale of a portion of the house would imply that a right of pre-emption is enforceable in respect of such sale. The argument by which the word patti is interpreted in that section as meaning only the whole patti, when applied to the house would be this:-- "When the whole house is sold then undoubtedly there is a right of pre-emption, but if a portion of the house is sold then there is no right of pre-emption for the co-sharers. A neighbour is entitled to sue when the whole house is sold to enforce his pre-emption but the sale of a portion of the house, whereby a stranger is introduced into the house, cannot be questioned by any pre-emptive claim by the co-sharers in the house itself."

That each would be the consequence of holding that the word patti as it occurs in s. 188 of the Revenue Act does not include the share of a pattidar is obvious. I cannot credit the Legislature with any such intention, as I believe, in framing s. 188 of the Revenue Act, they were only recognizing and showing consideration to the well established custom of pre-emption in this part of the country. In short, I think that, whatever meaning is to be assigned to the word patti for purposes of considering the anulment of settlement or considering the question whether a patti cannot be executively brought to sale under s. 166, so as to defeat prior incumbrances; for purposes of interpreting s. 188 the word patti must include the share of a pattidar. I must repeat that I am driven to this conclusion, because otherwise the policy of the Legislature in framing s. 188 would be frustrated, as it would be repugnant to the very notion of pre-emption. So far as these views are in discord with the ruling of a Division Bench of this Court in Muhammad Faruk Vs. Narain Singh, respectfully dissent from it.

I now proceed to consider the case-law upon the subject, and in doing so I must premise what I have already pointed out that the provisions of s. 188 of the Revenue Act (XIX of 1873) axe a reproduction of the rule as to pre-emption contained, in s. 4 of Act I of 1841, and that by section 14 of Act XXIII of 1861 the rule was extended to auction sales in execution of Civil Courts'' decrees. Whilst the law stood thus it was held by Morgan, C.J. and Spankie, J. in Sheikh Kadir Bux v. Ram Tahul Bhagut N.W.P.H.C. Rep., 1871, p. 125 following some earlier rulings of the Sadar Court, that a claim for pre-emption under s. 4 of Act I of 1841 applied equally to perfect and imperfect pattidari tenures, as they both fall under the purview of the definition of pattidari estate in s. 2, of that Act. Even a stronger case is the ruling of Pearson and Brodhurst, JJ., in Ram Autar v. Sheo Dutt N.W.P.H.C. Rep., 1874, p. 243 where there had been no public partition, but it appeared from the settlement wajib-ul-arz that the lands in the mauza were held in the following manner, that is to say, the co-sharers had divided them into pattis, and each pattidar realized the rents or proceeds of his own separate holding, and his share of the rent of the common lands, and paid his own quota of revenue separately, it was held that the tenure came within the definition of a pattidari (sic) contained in s. 2 of Act I of 1841, and a share in the mausa having been put up for sale in the execution of a decree and knocked down to the defendant, a stranger, the plaintiff, a co-sharer of the share, was held to be entitled, under the provisions of s. 14 of Act XXIII of 1861, to take the share.

These cases are clear authorities for the proposition that the mere Act of a pattidar''s share being situate in an imperfect pattidari where did not preclude pre-emption in respect of the sale of such share under s. 4 of Act I of 1841, and I see nothing in the corresponding s. 188 of the present Revenue Act (XIX of 1873) to require any other interpretation.

As to the third point I am of opinion that the phrase "any recorded co-sharer" as it occurs in s. 188 of the Revenue Act means any pattidar, that is, the holder of a share in a pattidari estate or mah�l, and that therefore the plaintiff-respondent, Sital Singh, was entitled to the right of pre-emption along with the other pattidars, there being no such restrictive words in the section as would exclude a person in his position.

The third ground of appeal in this case, namely, that since the lower appellate Court has found that one of the plaintiffs, Bhoja Singh, was not entitled to pre-emption, it should also have held that the plaintiff-respondent, Sital Singh, had also forfeited his right of pre-emption by joining the aforesaid Bhoja Singh as plaintiff in the suit is also the turning point of the ground taken by Bhoja Singh in his connected second appeal, No. 998 of 1888, in which he contests the validity of the lower appellate Court''s finding in this respect; so far, therefore, both these appeals may be considered together.

It has been argued on behalf of the defendant Baijnath, who is respondent in Bhoja Singh''s appeal, ( No. 998 of 1888) that since Bhoja Singh was a co-sharer of the same patti as Lala Singh whose there was sold on the 20th August 1888, his proper course was to have prevented that sale by paying up the money due by Lala Singh in respect of which the Revenue Court''s decree was passed against the latter and that he, having omitted to do so, must be taken to be himself a defaulter so as to disentitle him from the benefits of s. 188 of the Revenue Act. This indeed is the view adopted by the lower appellate Court as the ground for dismissing his claim, but it is thoroughly unsound. In the first place it was not pleaded and it does not appear, that Bhoja Singh was himself in arrear of revenue with regard to the land sold, and in the next place, as I have shown, the sale must be understood to have taken place under s. 177 of the Rent Act read with section 168 of the Revenue Act, sales under which must necessarily be limited to the interest of the defaulter Lala Singh, and could in no sense have imperilled the rights and interests of Bhoja Singh, thus rendering it unnecessary for him to make any payment to obviate the sale. As a pattidar Bhoja Singh was entitled, like Sital Singh, to the right of pre-emption in respect of the sale of the 20th August 1886, and there was nothing irregular or improper in their having joined in bringing the suit to enforce the pre-emptive right which was common to them both. This view renders it unnecessary for me to consider how far the rule laid down in Bhawani Prasad v. Damru I.L.R., 5 All., 197 and Karan Singh and Another Vs. Muhammad Ismail Khan and Others, that the joinder of a stranger by a pre-emptor in suing for pre-emption defeats the entire pre-emptive rights can be applicable to a case such as this where the claim for pre-emption is based upon the statutory provisions of s. 188 of the Revenue Act.

As the result of this judgment I would dismiss this appeal, and, setting aside the decrees of the lower Courts, so far as they dismiss the claim of Bhoja Singh, decree his appeal (S.A. 998 of 1888) with the effect that the whole suit as brought would stand decreed with costs in all the Courts.

Edge, C.J.

In the view which I take of sections 166, 168 and 188 of Act XIX of 1873, it is not necessary for me to express in this case any opinion as to the effect of s. 177 of Act XII of 1881 or on the various other points discussed by my brother Mahmood.

In my opinion we must apply here the rule of construction which is applicable generally to statutes and Acts of the Legislature act, that is, we must construe a word which occurs more than once in the same Act so us to give it the same meaning throughout the Act unless some definition in the Act or the context shows that the legislature used the word in different senses.

If the Legislature by "patti" as used in ss. 166 and 188 of Act XIX of 1873 meant the share of a pattidar in a patti and not a division of a mah�l, it appears to me that the Legislature used the word "patti" in two different senses in the Act. In s. 150 clause (a) a distinction is made between a "share" and a "patti" and a "mah�l." In clause (e) of that section a distinction is made between a "share" and a "patti." Clause (f) of s. 150 relates to the annulment of the settlement of such patti or of the whole "mah�l" clause (g) to a "sale of such a patti or of the whole mah�l" and clause (h) to a "sale of other immovable property of the defaulter." The "other immovable property of the defaulter" in clause (k) must be immovable property other than "the share, or patti, or mah�l in respect of which the arrear is due" mentioned in clause (d), and consequently other than "such share or patti" mentioned in clause (e) and other than "such patti" or the "whole mah�l" mentioned in clauses (f) and (g).

The "processes" respectively prescribed in clauses (a) to (k) inclusive of s. 150, by which an arrear of revenue may be recovered are separately developed and provided for in the subsequent sections of the Act, and are not in those sections confused one with the other. As for example, process "by attachment of the share, or patti, or mah�l in respect of which the arrear is due" mentioned in clause (d) of s. 150 is dealt with in ss. 154, 155 and 156. Again the process "by transfer of such share, or patti, to a solvent co-sharer in the mah�l" mentioned in clause (e) of s. 150 is dealt with in s. 157. Again the process "by annulment of the settlement of such patti, or of the whole mah�l" mentioned in clause (f) of s. 150 is dealt with in ss. 158 and 159. Ss. 160 to 165 inclusive further relate to some of the above-mentioned processes. The process "by sale of such patti or of the whole mah�l" mentioned in clause (g) of s. 150 is dealt with in s. 166; s. 167 enacting what shall be the effect of a sale under s. 166. The process "by sale of other immovable property of the defaulter" mentioned in clause (h) of s. 150 is separately dealt with in s. 168. Ss. 169 to 187 inclusive relate to procedure, re-sales, the application of proceeds of sales, the liability of a purchaser and other matters not necessary to refer to here, There is nothing to suggest that the word "patti" in s. 166 has been used in any other sense than that in which it has been used in clauses (d) (e) (f) and (g) of s. 150 when it is used as meaning something other than a share of a defaulting share-holder or pattidar in the patti. It appears to me that, in whatever sense the word "patti" is used in s. 166, the same meaning, and that only, must be applied to it as it is used in s. 188 which enacts that "when any land sold under s. 166 is a patti of a mah�l any recorded co-sharer may, &c.," It will be remembered that what may be sold under s. 166 is the patti or mah�l in respect of which such arrear is due and not the share of a defaulting shareholder or pattidar in the patti.

A sale under s. 168 of Act XIX of 1873 can only be resorted to "if the arrear cannot be recovered by any of the above processes," amongst which is the process of a sale of "the patti or mah�l in respect of which such arrear is due" authorized by s. 166. I cannot read s. 188 of the Act as applying to a sale under s. 168.

For the above reasons, whatever may be the construction of s. 177 of Act XII of 1881, I am of opinion that s. 188 of Act XIX of 1873 cannot apply in this case in which the property sold was not a patti of a mah�l within the meaning of that section.

It was not suggested by the learned vakil who represented the respondent before me that there was any right of pre-emption if s. 188 of Act XIX of 1873 did not apply.

I would allow the appeal of Baij Nath, defendant, with costs and dismiss the suit with costs.

Young, J.

This was a suit for pre-emption of the share of a pattidar in an imperfect pattidari estate, such share having been sold at auction in execution of a decree of a Rent Court.

The points for decision in this case appear to be the following. Where a decree under the Rent Act (XII of 1881) has been passed against the owner of a share in an imperfect pattidari estate and execution of such decree has been had by sale of the defaulter''s stare in the mah�l (not being the property on which the arrear accrued) does the right of pre-emption accrue--

(1) to co-sharer in the same patii?

(2) to a co-sharer in another patti of the same mah�l?

The law as to execution of decrees of Rent Courts provides (Act XII of 1887, s. 177) that "the Board" may order the property to be said, "in which case the sale shall be made under the rules in (sic) for the sale of land for arrears of revenue but without prejudice to the incumbrances (if any) to which such property may be subject."

I think the expression "the rules in force for the sale of land for arrears of revenue" must be taken in its most comprehensive sense and is probably wide enough to include within its scope the rule allowing the exercise of the right of pre-emption at such sales under certain circumstances.

What then are the circumstances under which a right of pre-emption arises in a sale for arrears of revenue?

Under s. 166 of the Land Revenue Act (XIX of 1873) the Collector may, with the sanction of the Board, sell by auction "the patti or mah�l in respect of which such, arrear is due." The next section (s. 167) enacts that land so sold is sold "free of all incumbrances" S. 168 enacts that if the arrear cannot be recovered by any of the processes previously mentioned "and the defaulter owns any other mah�l or any share in any other mah�l or any other immovable property" the Collector "may proceed against such mah�l or other immovable property as if it were the land on account of within the revenue is due under the provisions of this Act."

The rule allowing the pre-emption is contained in s. 188 of the same Act which runs as follows:--

"When any land sold under s. 166 is a patti of mah�l any recorded co-sharer, not being himself in arrear with regard to such half, may, if the lot has been knocked down to a stranger, claim to take the said land at the sum last bid." S. 168 extends these provisions to any mah�l, share, or immovable property other than that on which the arrear accrued; but only authorizes sale of the defaulter''s right and title therein saving incumbrances.

It is admitted that the village of Musafirpur consists of three "pattis"--

It is further admitted that the tenure of the village in "Imperfect pattidari." In patti (III) Lala Singh held a share of 1 biswa 2 biswansis 5 kachwansis. We are not informed whether this share was held by him in distinct severalty or conjointly with other co-sharers in patti No. III, but in any case this share was sold at auction on the 20th August 1886, in execution of a decree of a Rent Court, under s. 177 of Act XII of 1881, and s. 168 of Act XIX of 1873 (apparently).

It will be remembered that such sale being in execution of a Rent Court''s decree, does not prejudice the rights (if any) of previous incumbrancers, and in this respect differs from a sale under s. 166 of the Land Revenue Act (XIX of 1873), and agrees with a sale under s. 168 of that Act.

The question now before us is--does Lala Singh''s Share (assuming it to be a separate share) of 1 biswa 2 biswansis 5 kachwansis in the third patti or mauza Musafirpur come within the meaning of the expression "patti of a mah�l" in s. 188 of Act XIX of 1873. Bearing in mind that Musafirpur is an imperfect pattidari village, I think the answer must be in the negative. For even if 1 biswa 2 biswansis 5 kachwansis could perfectly be called a patti, or the patti of Lala Singh, it would be the patti of a patti and the language of s. 188 ought to run--"When any land, &c., &c., is a patti of a mah�l or the patti of a patti of a mah�l." Does the language of the Land Revenue Act really justify such an interpretation? If the property to be sold had been either of the three great pattis into which this village is divided, then the language of s. 188 would clearly be accurate, such a sale would be "the sale of a patti of a mah�l." In the present case however we are asked to interpret the words patti "of a mah�l" to mean "patti or part of a patti of a mah�l".

But it was contended that in a pattidari village (perfect or imperfect pattidari) the word patti also meant the holding of any of the pattidars and therefore Lala Singh''s share of 1 biswa 2 biswansis 6 kachwansis might be called his patti, he being a pattidar. To this it was replied, firstly, that in that case the Urdu word patti was used ambiguously in the Act to mean two things, and secondly, that in its second sense the word is simply equivalent to share, and that if the Legislature had meant to include a pattidar''s share in the words "patti of a mah�l" in s. 188, Act XIX of 1873, it could and would have said so, just as it does speak of "any share in any other mah�l in s. 168 of Act XIX of 1873.

Again s. 150 of Act XIX of 1873 specifies the various remedies to be had against revenue defaulters. It provides eight processes for enforcement of the Government demand. Some of these deal with the share of a defaulter, some with the patti or mah�l in respect of which the arrear accrued.

The section draws a sharp distinction between the words mah�l, patti, share, and this corroborates me in the opinion that the words "patti of a mah�l" in s. 188 are not intended to include the share of a co-sharer in a patti of an imperfect pattidari mah�l.

If the village had been a perfect pattidari one, so that Lala Singh''s share might have been held entirely in severalty without any share of the joint lands; then "patti" might have included Lala Singh''s share, though, even then, the language of the Act could not be regarded as free from ambiguity. But where the village is one of zam�nd�ri tenure or of imperfect pattidari (as here) the word patti cannot be treated as synonymous with share. In conclusion I may briefly point out that a sale under s. 168 is merely a sale of the defaulter''s right, title and interest, and does not pass a title clear from prior incumbrances. It may well be that this consideration influenced the Legislature in omitting to allow a right of pre-emption in sales under s. 168.

In my opinion s. 188 of Act XIX of 1873 has no applicability to sales under s. 168 of that Act. On these grounds I would disallow the claim of Sital to pre-emption and would decree the appeal of the purchaser Baijnath with costs.