BALA BAKSH Vs. NARAIN
LAWS(RAJ)-1952-5-20
HIGH COURT OF RAJASTHAN
Decided on May 12,1952

BALA BAKSH Appellant
VERSUS
NARAIN Respondents

JUDGEMENT

Sharma, J. - (1.)THIS appeal arises out of a suit for pre-emption filed by Narain plaintiff-respondent against the appellant Balabaksh. The property, which was sought to be pre-empted, is situated in Rajgarh in Alwar District. It consists of plots Nos. 1862 (1-1/4 bigha in area) and 1863 (3/4 of a bigha in area), situated in khewat No. 96 of village Rajgarh. THIS property originally stood in the name of Gangabaksh, but it was transferred by him to the defendant-appellant Balabaksh, vide mutation No. 565 dated 25th March, 1941. The plaintiff, Narain, brought the suit for pre-emption on the 17th of May, 1941, on the allegation that the plaintiff had his own property contiguous to the property in suit, and that the vendee Balabaksh had no property near the said property. It was also alleged that the property originally belonged to one Kajora, who was a collateral of the plaintiff, and that while the plaintiff was an agriculturist by profession, the vendee was not. It was also alleged that although the ostensible consideration was Rs. 500/-, yet the property was in fact sold tor Rs. 300/- only. The defendant vendee Balabaksh also contested the suit on the ground that Kajora had nothing to do with the property, and that the plaintiffs property, on the basis of which he had claimed preemption, was not contiguous to the property in suit, but some land belonging to the Government lay between the two. It was also pleaded that the real consideration was Rs. 500/- and not Rs. 300/ -.
(2.)THE suit was dismissed by the Munsif, Rajgarh, on the 25th of October, 1943, on the ground that the plaintiff had no right of preemption under sect. 129 of the Alwar State Revenue Code, and that there was no other law obtaining in Alwar according to which the right of preemption of the property in question could be claimed. THE plaintiff went in appeal, but his appeal was also dismissed. He preferred a second appeal, where he was allowed to amend the plaint, and the case was sent back to the first court for hearing and disposal. THE suit was, however, again dismissed by the Munsif on the 19th of March, 1946. THE plaintiff again went in appeal against the decree of the first court to the court of District Judge, Alwar, In the meanwhile the Alwar State Pre-emption Act (Act No. VII of 1946) came into force on the 28th of June, 1946 which allowed right of pre-emption in certain cases. No notice of this Act was taken in appeal, which was dismissed by the District Judge on the 2nd of July, 1946. THE plaintiff preferred a second appeal in the High Court at Alwar, and raised a point that section 31 (1) of the Alwar State Pre-emption Act (hereinafter to be referred to as the Pre-emption Act) applied to the case, and the case be remanded to the trial court with a view to restore it to file and decide it according to the above Act. It was held by the High Court on the 14th of August, 1946, that sec. 31 (1) of the Pre-emption Act applied and without deciding the appeal on merits, it remanded the case to the trial court with a view to restore it to file and decide according to the Pre-emption Act on the request of the counsel for the appellant. THE learned Munsif proceeded to decide the case in the light of the provisions of the Pre-emption Act, and held that the plaintiff was the owner of the estate within the meaning of sec. 15, clause (c), thirdly. He held that the defendant vendee was only a tenant with rights of occupancy, and, therefore, the plaintiff had a preferential right of pre-emption as against the defendant vendee. He consequently decreed the suit,, but held that the consideration was actually Rs. 500/ -. THE defendant vendee Balabaksh went in appeal, but the learned Additional District Judge, Alwar, upheld the decree of the first court, and dismissed the appeal. Balabaksh, the defendant vendee, has come in second appeal.
It was argued by the learned counsel for the appellant that the plaintiff had no right under the Pre-emption Act, as he was not the owner of the estate within the meaning of sec. 15 (c), thirdly, of the Preemption Act. It was argued that the lower courts had held that he was only a malik makbuja in certain plots. In the first instance, malik makbuja was not an owner within the meaning of sec. 15 (c), thirdly, of the Pre-emption Act, and in the second instance even if he be deemed to be an owner, there was no evidence to show that he was an owner of the estate. It was further argued that, in any case, the only remedy of the plaintiff was to file an application in the original court under sec. 31 (1) of the Pre-emption Act for restoration of the suit to file.

It was argued on behalf of the respondent that although the word "estate" was not defined in the Pre-emption Act, yet under sec. 2 (a) of the Alwar State Revenue Code, "estate or mahal meant "an area for which there is a separate record-of-rights or which is treated as such under orders of His Highness' Government". It was argued that the property in suit was situated in khewat No. 96 of village Rajgarh, and the plaintiff was owner of plots Nos. 1864, 1865 and 1866 in khewat No. 66 of the same tillage. A separate record-of-rights has been prepared for that part of the village in which these two properties are situated. The plaintiff was, therefore, an owner of the estate within the meaning of sec. 15 (c), thirdly, of the Pre-emption Act. The defendant vendee was not such an owner, and he was only an occupancy tenant. The rights of the plaintiff were, therefore, preferable to those of the defendant vendee. It was further argued that malik makbuja means owner, and for that two rulings of the Lahore High Court reported in Jawala Singh vs. Tara Singh and another [ A. I. R. 1920 Lahore 94 (2) ] and Chanan Din vs. Chanan Din and others [ A. I. R. 1933 Lahore 213 ] were relied upon. As regards the objection that the remedy of the plaintiff was only by way of an application to the first court under sec. 31 (1) of the Pre-emption Act, it was argued that an application to the first court was necessary only if the case had been finally decided, and was not pending before any court. In the present case, the appeal was pending when the Preemption Act came into force, and, therefore, the suit was not finally decided. The appellate court being seized of the case, it was enough for the plaintiff to rely upon the provisions of the Pre-emption Act. The" plaintiff did submit to the High Court that he was entitled to pre-empt under the Act, and the court held that sec. 31 (1) of the Act applied, and remanded the case to the trial court with a view to restore it to file, and decide it according to the Act. The vendee did not seek to set aside the ex parte order of the High Court, dated the 14th August, 1946, which was passed in his absence. He also did not take any objection in the courts below that the case could not be reopened as no written application was made to the original court under sec. 31 (1) of the Pre-emption Act. It was, therefore, not open to him to urge in second appeal that the case was illegally reopened in the first court. As regards the objection with respect to the plaintiff's right to pre-empt it was argued that no objection was taken in the lower courts that the plaintiff was not an owner of the estate within the meaning of sec. 15 (c), thirdly, of the Pre-emption Act. The only objection taken was that sec. 15 was not applicable by virtue of sec. 14. The vendee could not, therefore, urge the two objections which he has urged before this Court.

We have considered the arguments of both the learned counsel. So far as the objection about the reopening of the case under sec. 31 of the Pre-emption Act is concerned, it might be said at once that the High Court at Alwar by its judgment dated 14th August, 1946, decided that sec. 31 (1) of the Pre-emption Act applied to the case, and remanded the case to the trial court with a view to restore it to file and decide it according to the Act, and the vendee in whose absence this judgment was given did not take any steps to have the order set aside under Order XLI, Rule 21 ,c. P. C. The order of remad to the trial court with a view to restore the suit to file and decide it according to the Pre-emption Act, therefore, became final and the trial court bad no choice but to restore it to file and decide it according to the Act. However, even in the first court after remand the vendee did not raise any objection that the procedure regarding restoration of the suit to file was illegal and was not warranted by sec. 31 of the Pre-emption Act. Not even in the court of appeal this objection was taken. Even in the memorandum of the present appeal this objection was not taken. The plaintiff could not, therefore, be heard to say that the procedure adopted was not strictly in accordance with sec. 31 of the Pre-emption Act, and the case was illegally reopened. Moreover, it does not appear from the wordings of sec. 31 (1) of the Pre-emption Act that a written application to the effect that the claim be restored to file and decided according to the Pre-emption Act should be made before the first court even though the suit was not finally decided, and an appeal was pending against it on the date when the Act came into force. Of course, if a suit has been finally decided, the court becomes functus officio, and cannot reopen the case unless it is authorised by any specific provision of law. In the present case appeal was pending against the decree of the Munsif on the date when the Act came into force. An appeal is merely a continuation of the suit, and as soon as an appeal is filed, the appellate court becomes seized of all the powers which the original court had. The appellate court was, therefore, as much entitled to order restoration of the claim to file as the court of first instance. The plaintiff could, therefore, move the appellate court that the claim be restored to file and decided according to the Pre-emption Act. It was not necessary that a separate written application be made to the appellate court in that respect. The plaintiff had taken an objection in his grounds of appeal that he was entitled under sec. 15 of the Pre-emption Act to pre-empt the property. At the time of hearing, a statement was made by the counsel for the appellant that the case be remanded to the trial court with a view to restore it to file and decide it according to the Pre-emption Act. This statement was made on the 14th of August, 1946, within three months from the 28th of June, 1946, when the Pre-emption Act came into force. It cannot, therefore, be said that the learned Munsif was wrong in restoring the claim to file and decide it according to the Pre-emption Act.

As regards the other objection that the plaintiff was not an owner of the estate within the meaning of sec. 15 (c), thirdly, it was proved, as held by both the lower courts, that the plaintiff was a malik makbuja of the plots Nos. 1864 to 1866 in khewat No. 63 of village Rajgarh of the Settlement Year 1922-23. A copy of this khewat has been filed, and is Ex. P/3 on the record. The disputed, plots Nos. 1862 and 1863 are entered in the khewat No. 148 of the said village, and both these khewats are entered in jamabandi mofussil of mauza Rajgarh of the said Settlement. Year. Again in the jamabandi mofussil of mauza Rajgarh of the year Svt. 2001, the plaintiff's plots Nos. 1864 to 1866 are entered in khewat No. 66, and the disputed plots in khewat No. 96. The plaintiff is shown as malik makbuja. According to the definition of the term "estate or mahal" in sec. 2 (a) of the Alwar State Revenue Code, it is clear that an estate or mahal means an area for which there is a separate record-of-rights. Now there is a separate record-of-rights in the shape of jamabandi mofussil of mauza Rajgarh, in which the two khewats are entered, and as has been paid above, one of these khewats consists of the plots in suit and others of the plots belonging to the plaintiff. This jamabandi mofussil is a. record-of-rights separately prepared for the whole of mauza Rajgarh or atleast that part of it of which the property in suit and the property on the basis of which pre-emption has been claimed form a part. The first court was; therefore, entitled to hold that the plaintiff was an owner of the estate within the meaning of sec. 15 (c), thirdly, of the Pre-emption Act. That is why the plaintiff did not raise any objection before the lower appellate court that the plaintiff could not be said to be such an owner.

As regards the contention that malik makbuja does not mean an owner of the estate, the contention of the learned counsel for the respondent is supported by a ruling of the Lahore High Court reported in Jawala Singh vs. Tara Singh and another [a. I. R. 1920-Lahore 94 (2)] in which it was decided that "a man is not debarred from pre-empting by the mere fact that he is only a malik makbuja and owns no share in the village shamilat. " The Alwar State Pre-emption Act is almost a copy of the Punjab Pre-emption Act, and sec. 15 of both the Acts is exactly in the same words. The contention of the learned counsel for the appellant, therefore, that the plaintiff being a malik makbuja cannot be said to be owner of the estate has no force, and was rightly repelled by the lower courts. Another ruling of the same High Court reported in Chanan Din vs. Chanan Din and others [a. I. R. 1933 Lahore 213] may also be quoted in support of the finding that the plaintiff can be said to be an owner of the estate within the meaning of sec. 15 (c), thirdly, of the Pre-emption Act. In that case, it was decided that - "in deciding whether a person is an owner of an estate within the meaning of 15 (c) thirdly, the determining factor is whether the area in question is or is not assessed to land revenue. Its extent, situation and the purpose for which it is bought or to which it may be devoted are absolutely immaterial. In the present case, as has been said above, the property of the plaintiff on the basis of which the right of pre-emption has been claimed, forms part of village Rajgarh, and the property in dispute also forms a part of it. The property of the plaintiff is assessed to land revenue, as will be found from the copy of the jamabandi referred to above. The plaintiff's claim was, therefore, rightly decreed.

The appeal has no force, and it is dismissed with costs to the contesting respondent. Ranawat, J.- I agree. .



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