Deb Singh v. Thagu Sah

1. This is a defendant's appeal arising out of a suit for pre-emption in respect of properties sold in Garhwal. The plaintiff is admittedly a resident cosharer in the village in which the property is situated. The defendant certainly resides in the neighbouring village. Sometime ago he purchased a share in the village in question, but in the sale deed there was no mention of any transfer of a cowshed or other building. His case has been that he possesses a cowshed in the village in question where his cattle and servants and sometimes himself live. The learned District Judge is doubtful whether a cow-shed exists at all. In any case, be has come to the conclusion that the possession of a cow-shed in this village where his cattle and servants may live would not be a sufficient residence of the defendant. I agree with this view. A person cannot be said to be a resident oo-sharer if he has got no residential house of his own where he ordinarily resides, but has got a mere cow-shed for keeping cattle and for servants to look after them. His ordinary residence being in another village, he must be deemed to be a resident of that village and not of the village where he has a cowshed. The next question is whether the plaintiff who is a resident oo-sharer can have preference over the defendant who is a non-resident co-sharer. Mr. Stowell in his Manual of the Land Tenures of the Kumaun Division, in Chap. 2, S. (8) p. 51 (Edn. 1928) has noted:

The first requisite, therefore, to entitle a man to claim pre-emption is that he should be a cosharer, and a resident oo-sharer, of the village.

2. He has further noted “A non-resident co-sharer also has no right of pre-emption.”

3. This opinion is based on the Garhwal village memorandum as well as on the ruling in Gajadhar Juyal v. Jora, decided by the Commissioner in 1902. Further reliance was placed on an entry in the wajib-ul-arz of another village which has been taken to be a typical example. It is not necessary to take that into account, as Mr. Stowell's book has in the past been accepted as a good record of the existence of the custom mentioned. I accordingly dismiss this appeal with costs.

K.B/R.K

4. Appeal dismissed.