1. These are certain Khasras of agricultural land measuring in all 4 Bighas and 13 Biswas in village Chharsa. Half of this land belongs to Amarnath respondent 4 and the other half belongs to Mahadevnath, Balunath and Narain Nath respondents Nos. 1 to 3 respectively. Respondents No. 2 and 3 sold their share of land in favour of defendant petitioner Prabhu Dayal by means of registered sale-deed dated 24-9-69. This led to the filing of the suit by respondent No. 1 Mahadevnath upon the basis of right pre-emption. Defendant Prabhu Dayal in his written statement inter alia pleaded that the sale being in respect of Khatedari right only, the suit was not maintainable as according to him provisions of Rajasthan Act, 1966 (hereinafter referred to as 'the Act') are not applicable to agricultural lands. The lower court in this respect framed issue No. 6 as under:

6 Is the present suit not maintainable?

It found favour with the plaintiff while deciding this issue on 25-5-70. Hence this revision.

2. The only point involved in this revision is whether what has been sold to the petitioner is pre-emptible.

3. The contention of the learned Counsel for petitioner is as follows: The ownership in respect of agricultural land rests in the State. What has been sold to the petitioner is the Khatederi rights of vendors in the disputed agricultural land. This transaction has not transferred the ownership of land in favour of Prabhudayal and as such when the transfer falls short of the transfer of ownership the question of right of pre-emption does not arise. He has not bean able to cite any direct authority on this point but has relied upon certain authorities which shall be referred to as and when the occasion arises

4. In order to appreciate the point involved it will be better to look into the relevant provisions of the Act. Section 3 of the Act defines what is the right of the pre-emption. Section 4 lays down cases in which the right of pre-emption accrues while Section 5 of the Act gives the cases in which this right does not accrue. These sections read as follows:

Section 3.-'Right of pre-emption' defined:The right of pre-emption' is the right accruing under Section 4 of this Act, upon a transfer of any immovable property, to acquire such property and to be substituted as the transferee thereof in place of and in preference to the original transferee and 'pre-emptor' means a person having a right of pre-emption.

Sec 4.-Cases in which right of pre-emption accrues-subject to the provisions contained in section 5, the right of pre-emption shall, upon the transfer of any immovable property, accrue to the persons mentioned in Section 6.

Section 5.-Cases in which right of pre-emption does not accrue:

(1) The right of pre-emption shall not accrue-

(a) upon the transfer of a shop, katra, sarai, musafir-khana, dharamshala, temple, mosque or other similar buildings; or

(b) upon a sale-

(i) by or to the Central or State Government, or

(ii) by or to any local authority, or

(iii) to any company under the provisions of part III of the Rajasthan Land Acquisition Act, 1953 (Rajasthan Act 24 of 1953), or

(iv) for the purpose of a manufacturing industry; or

(c) on a transfer to any of the persons mentioned in Section 6, to any person who has an equal or inferior right of pre-emption; or

(d) in the case of transfer by joint owners, to a party to such transfer; or

(e) in respect of-

(i) any sale in execution of a decree of a civil or revenue court; or

(ii) any sale in default of payment of land revenue or any sum legally recoverable as an arrear of land revenue:

Provided that, in the case contemplated by Sub-clause (iv) of Clause (b) the right of pre-emption shall accrue, subject to the other provisions of this Act, on the expiry of one year from the date of the registration of the sale deed, in case such sale is made without a registered deed from the date of taking physical possession of the immovable property sold if such property has not been used in good faith for the purpose for which it was ostensibly purchased.

(2) Nothing in this Act shall-

(a) affect the provisions of Rule 88 of Order XXI of the Code of Civil Procedure, 1908 (Central Act 5 of 1908) or the provisions of the Rajasthan Land Revenue Act, 1956, or the Rajasthan Colonisation Act, 1954 (Rajasthan Act 27 of 1954), or

(b) confer on any person the right of pre-emption in respect of any immovable property which such person is not entitled to purchase under any law for the time being in force.

The words 'Transfer' and 'immovable property' appearing in these sections and the word 'Sale' appearing in Section 5 of the Act are defined in Section 2 as follows:

2. (iv) 'Immovable property' means land or house property wherever situated in the State;

...

(vii) 'sale' means a transfer of ownership in immovable property in exchange for a price paid or promised or partly paid and partly promised;

(viii) 'transfer' means a sale, or a mortgage where the final decree for foreclosure in respect thereof has been passed.

The word 'land' has been for the purposes of this act defined in section 2(v) as follows:

2 (v) 'land' includes things attached to the earth, or permanently fastened to anything attached to the earth, when sold or foreclosed along with the land to which they are attached but not otherwise;

5. It is not disputed that what has been sold to the present petitioner is the Khatedari rights only. Chapter III of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the Tenancy Act') defines the various classes of tenants and a Khatedar is one of them. Section 15 of the Tenancy Act defines what a Khatedar Tenant is and how one acquires Khatedari rights Section 15-B refers to Khatedari tenants in Abu, Ajmer, and Sunel area i.e. areas which formed part of Rajasthan after this Act had come into force. Section 15 A, give out areas in which Khatedari right is not to accrue and Section 16 specifies kinds of land in which Khatedari right shall not accrue. Section 38 of the Tenancy Act states that interest of every kind of tenants is heritable. Section 39 gives to the Khatedar the right to bequeathing his interest in the holding. Section 41 lays down that the interest of a Khatedari tenant shall be transferable otherwise than by way of sub-lease Section 42 speaks of general restrictions on sale, gift, or bequest by a Khatedar whereas Section 43 says to what extent a Khatedar may transfer his interest and his rights by way of mortgage. Under other provisions of the tenancy act he can make improvements in the holding; his Khatedari interest is liable to be attached and can be sold in decree for arrears of rent. He can for the purposes of consolidation of holding exchange his land with the land of another tenant as provided in Section 49. The State cannot eject him from the land so long as the Khatedar continues to pay the rent.

6. In the light of this background of law it is now to be seen whether the transfer in the present case attracts the provisions of the Act. To put it in other words whether the sale of Khatedari rights in favour of the petitioner can be said to be the transfer of ownership in the disputed agricultural land.

7. The dictionary meaning of ownership is 'the state, relation or fact of being an owner; lawful claim or title to property, proprietorship, dominium" vide Webster's Third New International Dictionary, 1966, Vol II. The word 'proprietorship' means the state or fact of being a proprietor, owner of an exclusive legal right for a definite or indefinite time to the profitable use of corporeal or incorporeal property upon agreed terms vide Ibid.

8. It has been urged by the learned Counsel for the petitioner that a Khatedar has no proprietary right and reliance in this connection has been placed upon Pirthi Singh v. Khatun Begum 1968 RRD 260 and Bansidhar v. Prabhu Dayal . In the former case at one place in the judgment it is no doubt said that Khatedars are never proprietors but there is no reasoning given for this proposition. In the latter case, which is a case of this Court, while dealing with the class of tenant in the erstwhile State of Mewar and under the provisions of Qanoon Mal Mewar it was held that a Khatedar in Mewar had no proprietary right in the land cultivated by him The reason for this finding may also be seen in that authority. According to Qanoon Mal Mewar Act 5 of 1947 the tenants are divided into four classes, viz.

Of these Kharamdar or Bapidar had both transferable and heritable rights; Khatedar and Mustakil Shikmi had only heritable right and the Shikmi had neither transferable nor heritable rights. Since a Khatedar in Mewar had no transferable right he could not be said to have any proprietary interest in that land. This authority in my opinion is of no avail to the petitioner because as will be seen presently there is a world of difference in a Khatedar under the Tenancy Act and a Khatedar under the provisions of Qanoon Mal Mewar. The right of Kharamdar or Bapidar under that Qunoon were both transferable and heritable. So it can be said that his rights were somewhat similar to that of Khatedar under the Tenancy Act.

9. At this stage it will be proper to think about the attributes of ownership in respect of a property. An owner of a property holds and enjoys the same. He has got right to transfer the same by will, gift, sale, exchange or mortgage and his right over the property is heritable. The point which emerges is whether all these are present in the Khatedari right For all that has been said above in respect of provisions of law vis-a-vis a Khatedari right I am of the view that a Khatedar has got proprietary right in his holding. A question arose whether Khatedari rights under the Tenancy Act are property in Jassuram v. The State of Rajasthan ILR 12 (1962) Raj. 990. After giving out the provisions of secs 15, 38, 39, 41, 49, 66, 213 and some other provisions this Court observed as follows:

It does not require much argument to convince that this bundle of rights is a collection of all the essential attributes which constitute the concept of property. While interpreting Article 19 of the Constitution their Lordships of the Supreme Court in the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindas Thirtha Swamiar of Sri Shirur Mutt 1968 RRD 260 have held that the word 'property' should be given to a liberal and wide connotation and should be extended to all well recognised types of interest which have the insignia or characteristics of proprietary right. The Advocate General has relied on Chiranjitlal Chowdhari v. The Union of India and has argued that the property must be such as is capable of being acquired, held and disposed of Even judged from the point of view of the three characteristics which have been enumerated as incidents of property, that is, it should be capable of being acquired held and disposed of, the petitioner's right in the land are such that all the three elements are present As we have already mentioned that the provisions of the Act make it clear that the petitioner had the right of disposing of his Khatedari rights, though of course under certain restrictions, but these restrictions do not matter. Secondly he had also the right to hold the property, as long as he continues to pay the revenue to the State Khatedari rights, are capable of being acquired. These rights may be conferred by the State on the payment of consideration or without it. They may also be acquired otherwise. Learned Advocate General has argued that it is the land itself which must be taken to be the property or if any auxiliary rights are available to a person in that land and if he is not owner of the land it would not constitute any property. The property as contemplated under Article 31 includes property in all its forms and as observed by Sastri, C.J. in the State of West Bengal v. Subodh Gopal Bose ILR 12 (1962) Raj. 990 it must be understood both in a corporeal sense as having reference to all those specific things that are susceptible of private appropriation and enjoyment as well as in its judicial or legal sense of a bundle of rights which the owner can exercise under the municipal law with respect to the user and enjoyment of those things to the exclusion of all others. These is no doubt in our mind that the Khatedari rights of the petitioner Surja Ram are property within the meaning of Article 31 of the Constitution.

10. It was then urged that the Tenancy Act lays down certain restrictions on a Khatedar in respect of his right to sale, gift, mortgage and bequest his holding. They are to be found in Sections 42, and 43 of the Tenancy Act and a bare perusal of these sections would show that they are reasonable restrictions in the interest of the Khatedar himself and therefore need not be discussed here in details.

11. Now I may deal with the other cases relied upon by the learned Counsel for the petitioner. The first in the series Nathuniram v. Gopinath in which it was held that there is no right of pre-emption with respect to a 'raiyati' or lease-hold land and that such a right cannot be claimed in respect of the house which stands on that land. The question of pre-emption of agricultural land or Khatedari interest was not involved in this case. On the other hand it related to a lease hold. The same can be said about Dashrathlal Chhaganlal v. Bai Dhondubai AIR 1941 Bom 262 because that also was a case of lease hold and not of any free-hold. The cases reported in Mahomed Jamil v. Khublal Bau(sic) AIR 1921 Pat 164 and Saleha Bibi v. Amiruddin AIR 1929 Pat 214 related to sale of 'Mokarari' land and it was held that proprietary interest was not sold but only Mokarari interest was sold as such the right of pre-emption did not arise. In Sakina Bibi v. Amiran ILR 10 (1888) All 472 it was held that the pre-emption should have a vested ownership not a mere expectancy of inheritance or a reversionary or any kind of contingency or any interest falling short of ownership. Obviously the point involved in the present case was not involved in this case. Similarly the case reported in Gopichand and Prabhu Dayal v. Meenalal also is of no avail to the petitioner as there the plaintiff was a mortgagee only and not owner of the property and claimed pre-emption.

12. Section 5 of the Act speaks of the cases in which right of pre-emption does not accrue. It no where expressly or by implication states that there will be no right of pre-emption in respect of sales of agricultural land or Khatedari interest. The learned Counsel for the petitioner drew my attention to clause (a) of sub-section 2 of this section specifically where it refers to the provisions of the Tenancy Act and the Rajasthan Land Revenue Act. What has been said in this clause is if the provisions of this Pre-emption Act are against any provision of the Tenancy Act, Land Revenue Act or the Rajasthan Colonization Act then the provisions of the latter Acts will prevail. That in my opinion does not mean that there is no pre-emption in the case of sale of agricultural land, e.g. Section 254 of the Land Revenue Act says,

"When any land sold under Section 235 or Section 237 is a portion of an estate, any recorded co-sharer in the estate, other than the person whose land has been sold, 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 within seven days of sale, and provided that the claimant fulfills all other conditions of the sale"

. This being a special provision in respect of pre-emption shall prevail over the general provisions of the Rajasthan Pre-emption Act. In a way it strengthens the case of respondent to the effect that the right of pre-emption in respect of agricultural holding is to be found in the Rajasthan Land Revenue Act as well.

13. That the State is the owner of all agricultural land is more or less a legal fiction only, otherwise, the ownership for all purposes vests in the Khatedar in whose name the particular holding is. This is further proved when we look into the provisions of Section 213 of the Tenancy Ac, which lays down that the Khatedari right is liable to be sold for the arrears of the rent in respect of that very holding and the purchaser of the same would get all the rights and liabilities of the previous Khatedar vis-avis that holding. If the State is really to be treated as the owner of all the agricultural land then the question of selling the holding on account of arrears of rent would not arise,

14. The result of the above discussion is that Khatedari rights in the agricultural land like any other immovable property can be held, enjoyed and disposed of It is heritable as well. Its sale is in fact of the ownership of such land and as such the plaintiff's suit for pre-emption of the disputed property is maintainable.

15. The revision, therefore, fails with costs.