Govind Rao and Another vs Erbhadrappa

Mohd. Ahmed Ansari, J.—This second appeal is against the concurrent decrees of the two lower Courts, dismissing the Appellants'' suit to pre-empt. an agricultural plot bearing Survey No. 64/1. Originally the suit was by four persons, claiming to be members of a Hindu joint family and owners of the adjacent agricultural lands, bearing S. Nos. 64/2 and 68. Two of the aforesaid claimants died in the Original Court, and another, who was Appellant 2, in this Court.

There have been no substitution proceedings for any of the deceased pre-emptors, either in the lower Court or in this Court, and at one time we found it doubtful whether the surviving pre-emptor was the pattedar of the adjacent lands. Documents have since been filed in this Court to show that he is such a pattedar, and this should now be taken as established.

The Appellant has claimed that the Survey No. 64 was divided into two ''pots'' of 64/1 and 64/2 in 1332 F. (1922-23 A.D.), and that his lands are on the north and south of the land, No. 64/1, which was sold by its owner, Ramji, on Isfandar 27, 1352 F. (30-1-1943). He has further claimed that the deceased Appellant made on behalf or the joint family the two demands on the day the property was sold, and that it has been sold for Rs. 1,500/- though the purchase amount has been mentioned in the registered sale deed as Rs. 2,000/- to defeat the claim of the pre-emptors.

The basis of the claim is, therefore, twofold. The assertion regarding being the pattedar of the land indicates the claim to have been rested partly on the right of pre-emption under the enactment, known as Zabte Shikmidaran. Again the allegations about the two demands having been made, show that the right to pre-empt. under the general law has also been invoked.

Unfortunately all the issues in the case have not been decided by the lower Courts; for on Isfandar 4, 1356 F. (4-1-1947), the trial Court dismissed the suit on a legal issue. It held that the claim was barred by Sub-section (2) of Section 5 of the Restraint against Alienation of Agricultural Lands Act, 3 of 1349 F. The aforesaid Sub-section of the Act, which has since been repealed, provided that unless a pre-emptor be of the same class of the protected agriculturists as the purchaser, no suit of pre-emption lay.

The trial Court has found the purchaser in this case to be a Lingayat, whose community had been declared a protected class of agriculturists before the judgment, whereas the Appellant was a Brahmin, whose community was not declared to be a protected class. Hence it dismissed the suit. The lower appellate Court has upheld the view, and disallowed the appeal.

Before the learned Single Judge, who originally heard the appeal, it was argued that as the claim of being ''pot pattedar'' of the land was not covered by the provisions of Zabte Shikmidaran, the decree of the lower Courts should be sustained. The learned Judge found a divergence of judicial views on the question, and has referred file case to a Division Bench. The same question was urged before us and we think there is force in the objection raised by the Advocate of the Respondent.

It is well known that the Law of pre-emption this State before the inauguration of the Constitution was being; administered on two bases. One was on the general law, whose principles were similar to the Muhammadan Law of Pre-emption, and the other on paras 12 and 14 of the Zabte Shikmidaran. Under the latter the right was held to be statutory, not dependent on making of the two demands, nor defeasible on the death of the pre-emptor and exercisable by pattedars or shikmidars of the lands paying revenue assessments.

In ''Kuni Ram v. Kashinath 16 DLR 94, (A) it was held that Zabte Shikmidaran was concerned with the claims of pre-emption by pattedars alone, and could not cover the claims of a joint pattedar. This view was not accepted by the erstwhile Judicial Committee in ''Chinna Reddy v. Local Narsian 25 DLR 354, (B) where it was decided that where the enactment had given to shikmidars the right to pre-empt. sales by their pattedars, ''a fortiori'', it should be construed as allowing to ''sherik'' or joint pattedars a similar right to pre-empt.

We are not concerned in this case with the claim by a ''sherik'' or joint pattedar to pre-empt. and there is the authority of a Single Judge in - ''Sogritappa v. Sagarappa 31 DLR 453, (C) that a ''pot'' pattedar cannot get the benefit of Zabte Shikmidaran. The ground on which this authority rests is that the part of the land the ''pot'' patted nr seeks to pre-empt. does not form part of his tenure and; therefore, his position is similar to that of the owner of an adjoining land and should be governed by the general law of pre-emption.

There is, therefore, some authority for the view that the two paragraphs in the Zabte Shikmidaran should be construed as conferring the right, on the pattedar or shikmidar of that land which is indivisible held for purposes of revenue payment. But a Division Bench in - Gurbasappa v. Sangappa 33 DLR 367 (D) held that a ''pot'' pattedar cannot be deprived of the right of pre-emption under the Zabte Shikmidaran and in 38 D LR 186'', (E) there is the observation) by a Single Judge that the fact of a shikmidar being made a ''pot'' pattedar by the action of the Revenue authorities should not result in the loss of his right of pre-emption under the enactment.

In the Zabte Shikmidaran persons expressly mentioned as entitled to pre-empt. are the pattedars, and shikmidars of land, paragraph 12 gives the right to the shikmidar where the pattedar sells the land, and para 14 allows a similar right to a pattedar in case of sale by the shikmidar. Obviously pre-emptive or pre-emptional tenements cannot exist where there be one tenure, and one realises the necessity of specific statutory provision for such cases; but where there be severance of that unity into several plots, as is the case where a number is split into several plots, one fails to understand the necessity for such statutory provisions.

Such plots become adjacent lands and the general law of pre-emption may well be allowed lo govern their sales. Therefore, there is no, hardship in construing the word ''land'' in the aforesaid paragraphs of Zabte Shikmidaran as meaning that area which is assessed in the revenue records as liable to pay a lump-sum. It cannot also be disputed that the word; ''joint pattedars'' and ''pot pattedars'' convey different meanings.

Where a particular Survey Number is split into several sub-numbers and each plot is assessed separately to a part of the revenue on the former number, the persons made liable to pay the separated amount are the ''pot pattedars'' of the several plots. Thus one ''pot'' pattedar is not jointly responsible with the others for the payment of the revenue of the other ''pot'' numbers, and his position is different from that of joint pattedars, where each is liable for the payment of the entire amount assessed on a particular survey number.

With the recorded severance of the liability to pay revenue, the position of the ''pot'' pattedar cannot be regarded as identical to that of the pattedar or joint pattedar, and his case should not, therefore, be held as covered by the right to pre-empt. allowed to the pattedar by the enactment. It may be that, one''s shikmidar is also responsible for part payment of the revenue; but in his case there is the unity of tenure which is not to be found in the case of a ''pot'' pattedar.

The Division Bench in 33 DLR 367 (D) therefore, erred in treating ''joint'' and ''pot'' pattedars as exchange terms, and the learned Judges further erred in paying inadequate attention to the express words of the enactment. We would emphasise that the Courts of law are concerned only with the construction and interpretation of statutes, and if a particular class be not covered by the express words used in any particular enactment or by necessary implication, the particular provisions cannot be extended to the class.

There are no express words used in Zabte Shikmidaran as conferring the right of preemption on ''pot'' pattedars, and we have already shown that the enactment having dealt with the rights of several persons within a unit, its operation should not be extended by implication to disintegrated parts of such a unit. Therefore, to bring this case within the operation of the enactment would mean extending operation of the enactment beyond its terms.

In our opinion, the reasons on which 31 DLR 453 (C) has been decided are cogent and should be accepted. The authority of 33 DLR 367, (D) is also distinguishable on the ground that the observation about ''pot'' and ''joint'' pattedar being exchange terms was ''obiter'' as the argument in the case was about, joint pattedar not being entitled to pre-empt. under the enactment. Therefore, the claim of the appellant to pre-empt. the property on the ground of his statutory right as ''pot'' pattedar fails, and the suit should be dismissed.

The Appellant might have succeeded on the general law of pre-emption as it then prevailed in this State, had the trial Court allowed evidence on the two demands. But it cannot be denied that the right of pre-emption must be a subsisting right on three crucial dates i.e. the pre-emptor should have the right on the date of the sale, when he files the suit and on the date a decree is being given in his favour.

We cannot remand the case to the trial, Court for decision on the merits of this part of the Appellant''s claim because the general law of pre-emption has ceased to be constitutional, and he can have no such right on the date of the decree even. If he be otherwise entitled to it. Therefore, we see no force in the appeal and it is dismissed with costs.