K. Laxman Rao vs Bhavani Singh and Another

Srinivasa Chari, J.—This is a second appeal arising in a suit for pre-emption filed by respondent 1, Bhavani Singh in respect of a house and Plot No. 2637 situated in Mukhtar Gunj Bazar in Koppal in the estate of Nawab Salar Jung Bahadur. The plaintiff filed a suit that he was the pattedar of the suit house and in addition he was the owner of the land (sic). The trial Court framed among other issues an issue to the following effect, ''Did the plaintiff make the Telab-ei mouvasibeth and Talab-i-Ishad; if not what is the effect of it on the plaintiff''s suit''. The trial Court on the evidence led by the parties came to the conclusion that the plaintiff had proved his claim and passed a decree for preemption in favour of the plaintiff against the defendants. Defendant appealed to the Sadar Adalat of the Estate of Nawab Salar Jung and the Sadar Adalat agreed with the trial Court and dismissed the appeal. The present appeal is by the defendant. When the appeal came up for arguments, the respondent filed an application before us praying for an amendment of the plaint by adding a prayer for relief on the ground that he may be granted a decree for pre-emption under the Shikmidari rules under the Land Revenue Act on the basis that he was the pattedar of the suit house. The appellant objected to the allowing of the amendment at this stage of the suit. We heard the arguments of the parties and we have come to the conclusion that by allowing this amendment it would neither change the character of the suit nor would it alter the cause of Action. The plaintiff has in his plaint stated in para. 1 that he is the pattedar of the house and has also stated that his house is next adjacent to the suit house is as much to say that he is the immediate neighbour of the defendant. The plaintiff has stated that he is the pattedar of the suit land and this is admitted by the defendant. When this fact is admitted by the defendant, it is open to the plaintiff to base his claim for pre-emption both on the basis of his being a neighbour and also on the basis of his being a pattedar. When the necessary facts have been set out in the plaint, it cannot be said that the defendant was taken by surprise, when the plaintiff asks for relief on the basis of his position as pattedar. In this particular case, it is not even necessary to take any oral evidence for the proof of any one of the facts alleged by the plaintiff. In a case where it is not likely to cause injustice or where it does not take the defendant by surprise and where by the amendment a plaintiff is only allowed to rely upon a new ground of relief it would not amount to an alteration of the character of the suit or the introduction of a new case and therefore amendment of the plaint could be allowed. We, therefore, allowed the respondents-amend the plaint and permitted (sic) he admitted before us that his case on the basis of the customary Mahomedan law of preemption could not be sustained as he conceded that the evidence with regard to the Talabs was not satisfactory. After the learned Advocate for the respondent conceded before us his case of pre-emption on the basis of Mahomedan law could not be sustained, we allowed the parties to argue on the question as to whether the plaintiff would be entitled to a decree for pre-emption by virtue of the provisions in the Khawaid Shikmidari passed under the Land Revenue Act. Under the above Regulation, the right of pre-emption has been given to a pattedar as against a Shikmidar and vice-versa; likewise, a joint pattedar would also have the right to preempt when the other pattedar sells his land. When a right of pre-emption is claimed by virtue of the Dastur-ul-amal Shikmidari and not on the basis of Mahomedan law the obligation or the duty to make the Talab-i Muvasibat and Talab-i-Ishhad is dispensed with and therefore even if the Talab-i-Muvasibat and Talab-i-Ishhad have not been made or they have been-imperfectly made, a pre-emptor would be entitled to a decree for pre-emption.

The Shikmidari Rules relate primarily to-cultivable lands. These rules have been made with regard to the entry in village records'' of the rights of persons in occupation and possession of cultivable lands. Prima facie, therefore, it would appear that the pre-emption right mentioned in these Rules would apply only when agricultural land is sold. In the case before us what has been sold is a house situated in the town of Koppal (Estate of Nawab Salar Jung) built on a Nuzuli land. The question, therefore, arises whether the privilege given under the Shikmidari Rules to a pattedar or Shikmidar to preempt when a land is sold would ensure for the benefit of an owner of a house who happens to be the pattedar of the land over which the house is built. It was argued by the learned Advocate for the respondent that there is no distinction between a land in respect of which Malguzari is paid (such as an agricultural land) and a land situated in a town area in respect of which Nazul is paid to the "Government and where the owner thereof is the pattedar of the land. In this connection our attention was drawn to the marginally noted rulings, 13 Deccan L.R. 200; 15 deccan L.R. 192; 19 Decca L.R. 270 and 25 Deccan L.R. 355.

The first case cited by the learned Advocate for the respondent was a case reported in 13 Deccan L.R. 200 . This was a plain and simple case of preemption which arose on the sale of an agricultural land. There the question was whether the transaction was a sale or a mortgage and there the question did not arise as to wither dispensing with the Talabs would apply to a land which is not agricultural land. This case does not help the respondent. The next case cited was 15 Deccan L.R. 192. There the question decided was as to which kind of Shikmidar would be entitled to pre-emption under the Shikmidari Rules. Here also, there was no decision given as regards the applicability of the Shikmidari Rules in regard to the sale of non-agricultural land. The case reported in 19 Deecan L.R. 270 on which also the respondent relied was a case where 1/4th of a Mouza was sold. Decidedly, the sale of a Mouza is a sale of agricultural land. This case also is not relevant to the matter now before us. The last case that was brought to our notice was the case that was decided by the Judicial Committee repotted in 25 Deecan L.R. 355. In that case an uninhabited area was taken on Kohl by two persons. One of them sold his share to a third party and the other filed a suit for pre-emption. In this case it was held that when a Shikmidar or a Pattedar sells the other person whether he is the pattedar or Shikmidar as the case may be would get preference over third persons to purchase the property. It was also decided that a joint pattedar would also have a preferential right just in the same way as a Shikmidar would have in the matter of preemption. These authorities there-fore cannot help the respondent in his contention that the Shikmidari Rules apply as well to non-agricultural lands.

On a perusal of the Shikmidari rules under which a right of pre-emption is given to a Shikmidar or a Pattedar or joint pattedar, it is clear that it primarily relates to agricultural land. The framework of the rules also lends support to the view that the object is to give preference to neighboring holders of lands which are cultivable. The object underlying the giving of preferential right to a Shikmidar or Pattedar is that a neighbouring land holder who is cultivating the land, should have the benefit of the adjacent land if he chooses to have it when the neighbouring land is sold to a third party. In every section of the Shikmidari Rules there is reference to cultivable land. If it was the object of the framers of these Rules that the right of pre-emption could be given to a person who is the owner of the land whether it is cultivable land or otherwise they would have specifically done so. We are, therefore, of opinion that the right of preemption which is allowed under the Shikmidari Rules is only in respect of agricultural land. The fact that in respect of a particular land Nuzool or some cases is being paid to the Government would not bring it within the definition of a cultivable land. For these sites which are non-agricultural and non-cultivable, the ordinary Mahomedan law of pre-emption would apply. Our attention has not been drawn to any case where the Court made the Shikmidari Rules applicable to a non-agricultural, non-cultivable site. On these grounds we hold that the plaintiff is not entitled to the right of preemption under the Shikmidari Rules.

It was argued alternatively by the learned Advocate for the appellant that even if it be conceded for argument''s sake that the plaintiff is entitled to claim pre-emption under the Shikmidari Rules, inasmuch as he refused to purchase the property, the previous refusal would operate as a bar to the exercise of the right of pre-emption. Of course, if from the facts we could come to the conclusion that the defendant had proved the refusal of the plaintiff to buy the property, then under the decision of the Pull Bench of this High Court in the case of Thuraji v. Bhanudas reported in 11 NO 447, the plaintiff would be debarred from exercising his right of pre-emption. Although under the ordinary Mahomedan law of preemption previous refusal to buy is of no effect and the right would accrue from the actual sale, but if Shafa or pre-emption is claimed under the Malguzari law, previous refusal would matter. In this regard, both the Courts below on the evidence adduced by the defendant have come to the conclusion that the defendant has not been able to prove the previous refusal of the plaintiff and we are not prepared to differ from this concurrent finding of the lower Courts. We, therefore, negative this contention of the Advocate for the appellant. But inasmuch as we have come to the conclusion that the plaintiff is not entitled to the benefit of the right of pre-emption under the Shikmidari Rules, we must perforce dismiss the plaintiff''s suit. We, therefore, allow the appeal and set aside the judgments as the two Courts below. The defendant would be entitled to recover from the respondent the costs of all the three Courts.

Siddiqi, J.

I agree.