MATA DIN Vs. KASHI NATH

JUDGEMENT

(1.) Certain plots of sir land were sold under a sale-deed dated the 5 October 1906. The plaintiff instituted a suit for pre-emption on the basis of the wajib-ul-arz which according to him gave him a right of pre-emption on the sale of sir land. The Court of first instance decreed the claim, bat the lower appellate Court reversed the decree on the ground that the sale of the sir land in question conferred no right, under the terms of the wujib-ul-arz, upon the plaintiff to pre-empt. The plaintiff has preferred a second appeal and his learned Counsel, on the authority of Safdar Ali V/s. Dost Muhammad 12 A. 426; Ali Hussain Khan V/s. Tasadduq Husain Khan 28 A. 124 : A.W.N. (1905) 219 : 2 A.L.J. 612; Inayat Husain V/s. Aminuddin Ahmed A.W.N.(1888); 182 contends that the sale of the sir land is tentamount to a sale of a share in the mahal. The learned Vakil for the respondent on the authority of Sital Prasad V/s. Amtul Bibi 7 A. 633; Husain Bukhsh V/s. Damar Singh A.W.N. (1904) 118; Hazari Lal V/s. Ugrah Rai A.W.N. (1884) 103; Raghunath Singh V/s. Gopal Singh A.W.N. (1886) 144; Dakhni Din V/s. Rahimunnissa 16 A. 412 contends that there can be no right of pre-emption when a sir-land is sold and he says that the conflict of authority can be reconciled in this way. If the sir holder is the full owner of the sir plot he is a share-holder in the mahal and the sale of such plots, i.e., the plots in which the full ownership and the sir rights are combined, gives rise to a right of pre-emption but if the sir-holder is a mere sir-holder and not the full owner of these plots, he is not a co-sharer in the mahal. A sale by such a sir-holder of his sir will not create any right of pre-emption. In the case before me there is nothing on the record to show whether the sir-holder who sold the plots in dispute was or was not the full owner of these plots or of any share in these plots. I, therefore, under the provisions of Order 41 Rule 25 of the Code remit the following issue to the lower appellate Court for trial and finding thereupon.

(2.) Was the vendor of the sir plots under the sale-deed of 5 October 1906 the full owner of these plots or of any share in these plots?

(3.) The Court will be at liberty to take such additional evidence as the parties may adduce. Ten days will be allowed for objections on return of the findings.