Hanmiah vs Kori Kokanti Basappa and others

Ahmed Mohiuddin Ansari, J.—This is a second appeal by the defendant against whom a suit for possession by enforcing the right of pre-emption was decreed by the Original Court, and the decree was affirmed in appeal by the District Court.

The plaintiff had alleged that he is a pattedar of Survey No. 30/2 which is contiguous to Survey No. 30/1. Both these plots were part of the same field before, which was subsequently split up into two, and each given a separate number. The latter number belonged formerly to defendant Nos. 2 and 3 who passed it on by sale to defendant No. 1. The plaintiff states that as soon as he knew of the sale, he made the two demands requisite for enforcing the right of pre-emption, under the Mohammedan Law. But the defendant No. 1 refused to hand over the field on payment of consideration. The defendants denied the right of the plaintiff as a pre-emptor as also the facts mentioned in the plaint, and contended besides, that the defendant No. 1 is a protected tenant against whom the right of pre-emption can only be enforced by a person who is himself protected under S. 5 Cl. 2, Hyderabad Land Alienation Act. The defendants also denied the fact of plaintiff''s making the two demands, under the Mohammedan Law and contended that as the plaintiff is neither share-holder nor a shikmidar, pattedar or a joint-pattedar of the land in dispute, under the Revenue Law too he has no right of pre-emption.

The Original Court although holding that the ''two demands'' were not proved, decreed the suit, however, on the ground that the plaintiff was a ''poat pattedar" and under the Revenue Law a ''poat pattedar'' like a joint pattedar has a preferential right. The Original Court also held that the plaintiff and defendants Nos. 2 and 3 who belonged to the Lingayat caste are not protected tenants, though that status was conceded to defendant No. 1 the purchaser of the field, who happens to be a ''Korva''. But the Original Court expressed no opinion on issue No. 5 as to what the effect was, of an unprotected tenant claiming the preferential right against a protected tenant. The Lower Appellate Court likewise is also silent on this point which was of utmost importance in. the case. The only ground which persuaded both the Lower Courts to decide the case in favour of the plaintiff was that the plots Nos. 30/1 and 30/2 were both parts of the same field formerly and the plaintiff has become a pattedar of 30/1 after the splitting up of the fields, and as a ''poat pattedar'' had the right of pre-emption. They have relied upon the Judicial Committee decisions of ''25 Dec L R 354'', and a Division Bench ruling of this Court '' 33 Dec L R 367'', which hold that a joint pattedar has the right of pre-emption. Against this concurrent judgment and decree the defendant No. 1 has come in second appeal.

I will first consider the right of the plaintiff from the point of view of the provisions of the Hyderabad Land Alienation Act, S. 5, CI. 2 which deals with the right of pre-emption against a cultivator who is protected. The learned Advocate for the respondent tries to get over this hurdle in two ways: firstly, admitting ''that at the time of the sale and the institution of the suit and at the time of the decree under appeal he was not a protected tenant, he stresses that he has acquired a protected status under the Hyderabad Land Alienation Act on 7-1-1356 P., during the pendency of this second appeal and it is immaterial whether he enjoyed that status before or not. Secondly that the Hyderabad Land Alienation Act itself now stands repealed and under S. 103 of the new Tenancy Act, no special privilege of the defendant No. 1 can be recognised. The effect of repeal, according to the Full Bench decision of ''38 Dec L R 104'', is that the provisions of the new Act will apply to the pending case.

We have held in ''36 Dec LR 672'', that an unprotected tenant cannot enforce his right of presumption against a person who enjoys protected tenancy. As such, on the date of the sale in question and the date of the institution of the suit, the plaintiff was not allowed to enforce the right of pre-emption even if he had any. The subsequent accuiring of such status does not help the plaintiff at all, as was laid down in Baldeo Misir Vs. Ramlagan Shukul, ''Umrao v. Lachhman'', AIR 924 All 448. As regards the effect of the repeal of the Hyderabad Land Alienation Act, in my opinion, it has no bearing on the issue. In the first place the rights acquired and the liabilities incurred under the Hyderabad Land Alienation Act are not affected by the new Statute in the absence of any special provision, and as S. 5, Cl. 2, Hyderabad Land Alienation Act, cannot be deemed to be repugnant to the spirit and provisions of the Tenancy Act, they will not be affected, as the Judicial Committee of this State decided in ''38 Dec L R 409''. The plaintiff has also failed to prove the two demands under the Mohammedan Law, and cannot successfully fall back upon a right under the Revenue Law, which does not exist. Both the Lower Courts have held that the plaintiff is a ''poat pattedar'' and so like a joint pattedar has a preferential right of purchasing the land of another ''poat pattedar''. No doubt under the Revenue Law a Shikmidar, Shareholder, a joint pattedar have been given a preferential right. But the ''poat pattedar'' stands on a different footing.

Now let me explain what a ''poat pattedar'' is and how he is distinguished from a joint pattedar. Two joint pattedars can exist for one field, but there cannot be two poat pattedars for the same. In the first case the joint right is only with regard to the patta of the same field and in the latter the fields are separate and they are two distinct pattas for all intent and purposes. Poat pattedari or the splitting of a patta is affected when the holding has been divided into two or more sections and a separate number is given to each plot in the Revenue Records for the purposes of assessment, succession, etc. Once a survey Number is split into two and ''poat patta'' are given, neither of the two portions can be said to be the part of the other, and every ''poat pattedar'', for all purposes, is a separate entity; but that is not the case in a joint pattedari. Naturally when two persons are joint owners they are shares in all rights pertaining to the field, and therefore, under the Revenue Law, have been accorded the right of pre-emption when any portion of this joint patta is alienated. But once a big survey number is split into two or more sections and each portion allotted a separate number every holder of these allotments is a separate and independent owner. No such holder has any right whatsoever in the holding of another bearing separate poat number under the Revenue Law.

The confusion in the minds of the Lower Courts seems to have been created by a phrase in ''33 Dec. LR 367'' which inadvertently used joint pattedar and ''poat pattedar'' as synonyms. Even if we take that it was a considered opinion that with regard to the right of pre-emption a ''poat pattedar'', stood on the same ground as joint pattedar, it was nothing more than an obiter dicta. I am sure, however, their Lordships of the Division Bench did not mean that ''joint Pattedar'' and ''poat pattedar'' were the same. Admittedly the plaintiff is neither a joint pattedar nor Shikmidar nor a shareholder in the survey No. 30/2 purchased by the appellant, therefore, under the Revenue Law he has no right of pre-emption. Besides, at the time of the sale when the right is said to have accrued, the plaintiff was not a protected tenant who could enforce the right against defendant No. 1, At all events, the plaintiff has not succeeded in establishing any right or a cause of action. Appeal is, therefore, allowed with total costs and the suit dismissed.