Sarjug Singh v. Jagmohan Singh

Mullick, J.:— The plaintiff, in exercise of his right of preemption, claims to purchase from defendants 3 and 4 a two-anna share in mauza Bazidpore which these defendants have sold by kabala to defendants 1 and 2. It is admitted that the mauza bears Tauzi No. 780 and that the plaintiff is the owner of a two annas 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 five khewats numbered 3/1 to 3/5. The plaintiff's interest has been recorded under Khewat No. 3/2 while that of defendants 3 and 4 has been entered in Khewat No. 3/5. An area of 4 bighas odd has been retained in his joint possession of all the co-sharers of the mauza and the question is whether, in these circumstances, the right of preemption exist. The Munsif found on a careful examination of all the acts that the plaintiff had separated his share so completely from that of defendants 3 and 4, that ??? could not be allowed to preempt, and he relied upon a number of authorities in the High Court of Allahabad of which the case of Munna Lal v. Hajira Jan(1) ??? an example.

2. These authorities however all ??? with perfect and imperfect partitions with special laws in the United Provinces am are not of any assistance for the purpose of the case now before us. The general principle that after a perfect partite on has been made by the Revenue Authorities, the right of preemption no longe exists between the former cosharers 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 watercourses 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 Jadu Lal Sahu v. Janki Koer(2) apply. The Subordinate Judge, disagreeing with the Munsif considers that they do. Of the other hand, the learned vakil for the defendants appellants before us relies up on Byjnath Singh v. Dooly Mahtoon(3) In that case the liability to pay Government revenue was still joint but the plaintiff had divided off his own share be regular metes and bounds and made him self in every respect independent of his coparcener 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 join liability does not constitute the coparcenary contemplated by the Mahomeda Law. Their Lordships did not access this submission and held that joint liability does not cease in the case of any sharer until his particular share has been partitioned by the Revenue Authorities in my opinion the learned Sub-ordinal Judge was right in holding that the cat under consideration was covered by the decision.

3. The next point that arises is as to ??? performance of the demands necessary stablish a right of preemption. 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 the lemand 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 July made. It was contended before us by the learned vakil for the appellants that it is necessary under the Mahomedan 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 male. 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 v. Chundi Churn Bhadra(4). In that case the point referred was whether it was necessary that the preemptor 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 word given in the Hedaya, Grady, p. 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.”

4. The authorities upon this point have been also discussed by their Lordships of the Allahabad Court in Muhammad Ahmad Said Khan v. Madho Prasad(5). On the other hand our attention has been drawn to the case of Chatu v. Husain Bakhsh(6), where their Lordships of the Allahabad Court appear to have held that their 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(7). 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, be has found that the plaintiff did call upon the witnesses to bear testimony to the fact that he had performed the previous ceremony.

5. 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 preemption does not seem to have been pressed before the Subordinate Judge on these grounds. The appeal therefore will be dismissed with costs.

6. Jwala Prasad, J.:— I agree to the order proposed.

V.S/R.K

7. Appeal dismissed.