Fauja Singh and Others vs Chanan Singh and Others

Harnam Singh, J.—On 3-3-1947, Chanan Singh and others instituted the suit out of which this appeal has arisen for possession by pre-emption of the suit land measuring 46 kanals, 4 marlas sold by Sohnun alias Sohan Singh Defendant 6 to Fauja Singh and others, Defendants 1 to 5, for Rs. 10,000 on the foot of the registered sale deed executed on 18-2-1946. Plaintiffs pleaded that they possessed a superior right of pre-emption as compared with Defendants 1 to 5 and that Rs. 6000 represented the actual sale price and the true market-value of the land.

Defendants 1 to 5 resisted the suit and on the pleadings of the parties the following issues arose:

Have the Plaintiffs a superior right of pre-emption qua the vendees?

Whether the ostensible sale price Rs. 10,000 was fixed in good faith and paid?

What is the market value of the land in suit?

Relief.

At the trial the Plaintiffs expressed their willingness to pay the entire sale price as preemption money to the vendees. That being so, issues 2 and 3 did not call for any decision in the trial Court and the sole question that was debated at the trial was whether the Plaintiffs had a superior right of pre-emption qua fcbn vendees. Finding issue 1 against the plaintffs the trial Court dismissed the suit leaving the parties to bear their own costs.

From the decree passed by the trial Court on 20-12-1947, Plaintiffs went up in appeal in the Court of the District Judge, Gurdaspore, and the lower appellate Court has found that the Plaintiffs possess a superior right of preemption as compared with Defendants 1 to 5 on the ground that the Plaintiffs were owners in the sub-division in which the land is situate while the vendees were not the owners in that sub-division of the village.

From the decree passed by the District Judge in appeal Defendants 1 to 5 have come up in further appeal to this Court u/s 100, Code of Civil Procedure, 1908.

Mr. Shamair Chand, learned Counsel for the Appellants, contends that there are no recognised sub-divisions or pattis for purposes of pre-emption in village Bhumbli, District Gurdaspore.

Section 15(c) secondly provides that the right of pre-emption vests in the owners of the pattis or sub divisions of the estate within the limits of which such land or property is situate, if no person having a right of pre-emption under Clause (a) or Clause (b) of Section 15 seeks to exercise that right.

Now, I think that the question whether a particular village comprises recognised sub divisions is a question of fact and is not open to challenge in second appeal. In Nanni Mal v. Shiv Nath 64 P. Rule 1887, Plowden J., said:

Now, it is clear that a particular town or city may or may not as a matter of fact comprise recognised sub-divisions, and I entertain no doubt that it is a matter of fact, both whether the town or city comprises sub-divisions, and what the sub-divisions art which are comprised in it.

Clearly, if the proposition laid down by Plowden J., in Nanni Mal v. Shiv Nath, 64 P. Rule 1887 is correct in the case of a town, I do not think any reason that this should not be so in the case of a village. That being so, I find that it is not open to Mr. Shamair Chand to contend in these proceedings that village Bhumbli in the Tansil of Gurdaepore is not divided into recognised pattis or sub-divisions within the meaning of Section 15(c) secondly, Punjab Preemption Act, 1930.

Mr. Shamair Chand, however, urges that the finding that village Bhumbli is divided into recognised pattis or sub-divisions within the meaning of Section 15(c) secondly, of the Act does not proceed upon the consideration of the entire evidence and is liable to challenge in second appeal. On a perusal of the record, I, however, see no merits in the point raised.

Mr. Shamair Chand points out that the lower appellate Court was in error in finding that, there was no shamilat attached to village Bhumbli and that each taraf had its own shamilat. He then points out that in fact the fields of one taraf are intermingled with the fields of the other taraf and that there is no homogeneity of descent in taraf Bakhtu where the land in suit is situate.

Now, the tarafs to be distinct sub-divisions must be distinct entities having nothing in common between them each having homogeneity of area and descent. In Ram Partap v. Kishan Singh AIR 1937 Lah. 32 : 169 I.C. 830, Tek Chand, J., said:

It is no doubt that in the settlement papers, the two pattis are mentioned and there are separate lambardars for them. But these facts are by no moans conclusive on the point. The number of lambardars appointed in a village, or the sub-division thereof, is a matter of administrative convenience, depending on a variety of considerations. In some places a single lambardar is considered sufficient for a whole village; in others, several lambardars are appointed for one subdivision. The real question is whether patti Gurmukh Singh and Patti Gulab Singh are distinct entities having nothing in common between them, each having homogeneity of area or descent.

On a perusal of the evidence, I find the following facts stand established on the record: (1) sub-divisions or tarafs are recognised in the settlement records and existed even before 1865 in Bhumbli village; (2) taraf Bakhtu in which the land in suit is situate was founded after the name of the common ancestor. Bakhtu, showing that tarafs of village Bhumbli wore not created for fiscal purposes but were founded by different proprietors and named after them; (3) exhibits D. 8 to D. 7 show that in some cages there is joint shamilat of two tarafs, but in all cases ownership follows the tarafs, each taraf being an equal sharer with the other and there is no shamilat attached to the village; (4) there is homogeneity of descent in taraf Bakhtu in that the common descendents of Bakhtu are the sole proprietors with a share in the shamilat of taraf Bakhtu; in 1865 Sudh Singh son of Jai Singh, ancestor of the vendor, was recognised malik qabiz of a small piece of land in taraf Bakhtu, but as stated above, tarafs existed and were recognised before that settlement and there have been no fresh inroads into the homogeneity of tarafs, by the introduction of strangers in the taraf after 1865; (5) the tarafs in village Bhumbli are based on the chak bat system as opposed to the khet bat system; the term chak bat is applied to a patti or sub-division of an estate which has all its land lying in one block as opposed to khet bat which applies to a patti or sub-division of an estate all the land whereof does not lie in a Bingle block; the kafiat dehi of 1865 expressly provides that tarafs of village Bhumbli have no connection or concern with each other; (6) the tenure of the village is pattidari showing that in village Bhumbli land is divided and held in severalty by the different proprietors according to ancestral or other customary shares; and (7) the land revenue according to the kafiat dehi is assessed on tarafs according to the area comprised in each taraf, though within the taraf it is payable by the proprietors according to their shares.

Applying the rule laid down in Ram Partap v. Kishan Singh AIR 1937 Lah. 32: (169 I.C. 830) to the facts of this case, I find that taraf Bakhtu is a distinct sub-division of Village Bhumbli and that the Plaintiffs possess a preferential right of pre-emption as compared with Defendants Nos. l to 5.

No other point arises in these proceedings.

For the foregoing reasons the appeal fails and is dismissed with costs.