- (1.) THIS is an appeal by Lalu and others who were plaintiffs in a suit for preemption, which has been dismissed by the Civil Judge of Suratgarh.
(2.) THE case of the plaintiffs appellants was that they were co-sharers in Patti Sohna, village Kulchandra. This Patti originally be-longed to Sohan, who was the father of Jeymal the original plaintiff. THE present appellants are sons of Jeymal and have been substituted in his place. Jeymal had sold parts of this Patti to various persons which included Binjraj and Khetaram. THEse two persons in their turn sold their share on the 26th May, 1950, to Mukhram who was the contesting defendant in this suit. THE present suit was brought to pre-empt this sale on the ground that the plaintiffs were Biswedars in this Patti from before, and were, therefore, entitled to pre-emption. Reliance was placed on the custom of pre-emption entered in the Wajib-ul-arz of this village though it was not pointed out in the plaint that the plaintiffs came under a particular term of the Wajib-ul-arz. The suit was resisted by Mukhram defendant. The custom was admitted, but the case of Mukhram was that the plaintiffs did not come within the terms of the custom narrated in the Wajib-ul-arz so as to claim preference over Mukhram. The main question for decision in the court below was whether the plaintiffs were entitled to pre-emption. The trial court decided against the plaintiffs and dismissed the suit. The same question arises before us in this appeal. We may set out the terms of the Wajib-ul-arz, because the case depends upon the interpretation and application of these terms. The Wajib-ul-arz sets out that land can be sold for personal needs, or to pay up land revenue, and in such case, the following order of preference will apply - (1) to yakjaddis, (2) In case the yakjaddis refuse to take the sale, to Sharkayan Shikmi, (3) In case the Sharkayan Shikmi refuse to take the sale, to other agricultural classes. It was first urged on behalf of the plaintiffs that they were entitled to pre-emption on the ground that they were yakjaddis. The argument was that the whole Patti originally belonged to Sohan, and the original plaintiff Jeymal was Sohan's son, and therefore yakjaddi with the original proprietor of the Patti. Learned counsel was unable to cite any authority in support of this view, and we are of opinion that yakjaddis, who have first preference in matters of sale, are relations of the vendor through males only descended from a common ancestor. The plaintiffs are admittedly no relations of the vendors, and therefore cannot claim to pre-empt as yakjaddis. It was then urged that the plaintiffs were entitled to pre-empt as Sharkayan Shikmi. The argument was that the plaintiffs were co-sharers in this Patti, while the vendee Mukhram only a co-sharer in another Patti in the same village. The answer to this depends upon the interpretation of the words Sharkayan Shikmi. The first case, to which reference may be made in this connection, is Maulvi Ilahi Bakhsh vs. Kaki and Mali (1) (1895 P. R. Civil Judgments No. 87, 411. ). In that case, the words used in the Wajib-ul-arz were "sharkayan Shikmi wa jaddi", and the question arose whether the plaintiffs of that case, who were related to the vendors, were entitled to preemption against the purchaser who, though a co-sharer, was not a relation. The Bench came to the conclusion that the words Sharkayan Shikmi wa jaddi were to be read conjunctively, and therefore a co-sharer who was also a relation must get preference over another co-sharer who was not a relation. This case is, therefore, not very helpful for finding out the meaning of the words Sharkayan Shikmi only, though there are indications in it to suggest that the term Sharkayan Shikmi in the Punjab had been held to mean co-sharers in a joint holding, and therefore related to property and not to relationship by blood. The next case is Gahl Singh vs. Natha Singh (1) (1903 Case No. 124, P. L. R. 357. ). In this case also the words to be interpreted were Shurkayan-i-Shikmi wa yakjaddi and the interpretation given in Maulvi Ilahi Bakhsh's case was followed. The third case is Allah Ditta and others vs. Shahua (2) (1908 P. R. Civil Judgments N. 12. 80. ). In that case, the term to be interpreted was Sharkayan Shikmi. The learned Judges adopted the interpretation given in Maulvi Ilahi Bakhsh's case. We may, however, point out with respect that this is not very helpful, because the difference in the words used was not noticed in the judgment. The earlier case, on which reliance was placed, had interpreted the term Sharkayan Shikmi wa jaddi, and the meaning of that term was imported in this case to interpret the words Sharkayan Shikmi. These words came up for interpretation in the Allahabad High Court also, and the earliest case on the point, which we have been able to get, is Abdul Shakur vs. Mendai (3 ). There is an earlier Full Bench case, namely Jeymal vs. Kesri (Agra F. B. 1866, p. 171); but we have not been able to lay our hands on it. The question for decision in Abdul Shakur's case (3) (I. L. R. XXIII All. 260.) was the meaning of the term Hissadaran Shikmi which may be taken to be equivalent to Sharkeyan Shikmi. These words appeared in the Wajib-ul-arz which provided seven classes of pre-emptors, each earlier class having preference over the next. The first two classes were composed of persons who were related to the vendor, while the third class was described as Hissadaran Shikmi. The fourth consisted of the lambardars of the Patti. The fifth was the co-sharer in the Patti, and the sixth and seventh were lambardars and co-sharers in the village. It was pointed out that the word Shikmi was derived from the word Shikam i. e. the belly, and its primary meaning was "inclusion". In that case, the Pattis were sub-divided into Khatas, each Khata representing a separate unit for the payment of Government revenue, and there was no other sub-division in the village smaller than the Khata. It was, therefore, held that the words Hissadaran Shikmi were used to give a preferential right of pre-emption to a co-sharer in the Khata over co-sharers in the Patti, the co-sharers in the Khata being denoted in the Wajib-ul-arz as Hissadaran Shikmi. This interpretation was arrived at as the primary meaning of the word "shikmi" is "something included", and those, who were included in the smallest unit, namely the Khata, were taken to mean as Hissadaran Shikmi. The next case is Bahal Singh and another vs. Mubarik-un-nissa and others (4) (I. L. R. XXX All. 77. ). There also the words Shurkayan-i-shikmi came to be interpreted. The Wazib-ul-arz in that case gave first preference to Shurkayan-i-shikmi second preference to Shurkayan-i-jaddi and third preference to khewatdars in the mahal. The learned Judges decided that Shurkayan-i-Shikmi meant relatives by blood, and not co-sharers in any sub-division of the mahal. With all respect to the learned Judges, we find it difficult to understand why preference was given to relatives by blood over Sharkavan-i-jaddi, though we can understand preference being given to co-sharers in the smallest sub-division in the village over relations. These words again came to be interpreted in Maulvi Sharif Ah mad Alvee vs. Muhammad and another (1) (79 I. C. , 612.) by another Bench of the Allahabad High Court, and the two earlier cases, we have mentioned above, were reviewed. The Judges, one of whom was Sulaiman, J. , later Chief Justice of Allahabad and Judge of the Federal Court, preferred the interpretation put by Banerji, J. in Abdul Shakur's case (2) (I. L. R. XXIII All, 260.) to the interpretation given in Bahal Singh's case (3) (I. L. R. XXX All, 77. ). Looking to the order of preference in the Wajib-ul-arz with which we are concerned, we find that first preference is given to yakjaddis namely relations descended from the same common ancestor through males. Next come Sharkayan Shikmi, and lastly other agriculturists. Obviously, the Sharkayan Shikmi could, under the circumstances, mean only co-sharers in the property and not relations by blood which have already been provided for. Further the use of the word Shikmi, which in its primary meaning mean? inclusion clearly indicates that the right of pre-emption was being given to the person who was included in the same category as the vendor. Where therefore, for example, the whole village is one undivided unit, and land revenue is paid jointly, and there is no further sub-division, the co-sharer in the village would be included in the term Sharkayan Shikmi. But where the village is sub-divided into Pattis, and there is no further sub-division of Pattis, the words Sharkayn Shikmi would refer to the co-sharers in those Pattis which have a separate land revenue. Where there is a further sub-division of Pattis into Khewats, then the term Sharkayan Shikmi means the co-sharears in the Khewats. The correct interpretation of the term "sharkayan Shikmi" therefore is "co-sharers in the smallest existing sub-division in the village paying revenue separately. "
(3.) IN the present case we find that Patti Sohna is divided" into a number of Khewats. The plaintiffs are co-sharers in Khewats 4, 5 and 6, while the vendors are co-sharers in Khewat 8. Besides the vendors there are other co-sharers in Khewat 8. Therefore, in the view that we have adopted, these other co-sharers only in Khewat 8 can be called Sharkyan Shikmi, because they are included in the Khewat in which the vendors are included. The plaintiffs are not included in that Khewat, though they may be in Patti Sohna, and they cannot therefore claim to be Sharkyan Shikmi of the vendors] Under these circumstances, the plaintiffs are not entitled to claim pre-emption on the ground that they are Sharkyan Shikmi. There is no further order of preference provided in this Wajib-ul-arz, because after Sharkayan Shikmi there is equal right to other agriculturists. The plaintiffs are agriculturists and so is the vendee, and there can be no preference between two kinds of agriculturists in view of the terms of this Wajib-ul-arz. The appeal must therefore fail, and is hereby dismissed with cost to Mukhram contesting defendant respondent. .;