BHARGAVA, J. - (1.) THESE three civil second appeals have been preferred by plaintiff Champa Bharti against the judgment and decree of the learned District Judge, Ajmer. Though the vendees in the three cases are different persons yet as the properties which are the subject matter of sale are situated in the same area and a common question relating to the custom of preemption is involved in all the three appeals, they are being disposed of together by this judgment.
(2.) IN second appeal No. 340 of 1958 the subject matter of sale is a plot of land measuring 12 Bighas and 12 Biswas comprising of Khasra Nos. 1363, 1364,1366 and 1372 in Khata No. 23. The sale deed is in favour of Jagannath and Harnarain Mahajans by Jetha son of Goma Jat for a consideration of Rs. 4000/- and is dated 13th June, 1943. IN civil second appeal No. 385 of 1958, the subject matter of sale is land No. 849/6/1 measuring 130ft. towards the road side, 99 x 12 ft. towards the plaintiff's side and 95ft. towards Periwals and is in favour of Kaluram and others Oswals of Beawar by Kanahiyalal for a consideration of Rs. 650/- and the sale deed is dated 13th March, 1948. IN civil second appeal No. 386 of 1958, the subject matter of sale is land measuring 20 yards x 26 yards No. 1030 known as Chatra and has been sold to Mangilal Rawat and Jetha by Dula, Nathu and Dalla for a consi-dertion of Rs. 1400/- and the sale deed is dated 31st January, 1949. The subject matter of sale in all the cases is situated in Moza Bicharli alias Nayanagar, Tehsil Beawar and the plaintiff as Khewatdar of this Moza has claimed right of pre-emption in respect of these lands on the ground that there is a long standing, immemorial custom and usage of pre-emption in the village community. IN all the cases it was alleged by the plaintiff that fictitious price had been entered in the sale deeds though actually the price paid was much less. The defendants contested the suits and inter alia denied the existence of custom of pre-emption prevailing in the said Moza. Plea of waiver was also raised in the cases and it was stated that the price mentioned in the sale deed had actually been paid. Necessary issues were framed by the trial court and both the parties led evidence in support of their respective contentions. It may be also added here that the lands which are the subject matter of sale in these cases are situated outside Mewari Gate and the city walls of Beawar town. The lands in civil second appeals No. 345 and 386 of 1958 are included within the municipal limits of Beawar town, while the land in civil second appeal No. 340 of 1958 is outside the municipal limits. There is no site plan on record of either case and it is therefore, not possible to state their precise distance from the city gate or from each other. Both the courts below after considering the evidence on record have come to the finding that during the last 25 years or so, a great change has taken place in the area where the lands are situated. Much of its area has come within the municipal limits of Beawar. Several buildings have been constructed and have been given on rent to mill employees etc. What was once a pure village site, where only Khewat-dars of Mauza Nayanagar owned land, has now assumed the appearance of the part of Beawar town and round about the locality are Bagichies and just two furlongs away is a Gurukul educational and residential institution owned by non-khewatdars. Such being the state of affairs it cannot be held that in Mauza Nayanagar a village community exists. In appeals Nos. 385 and 386 of 1958, the courts below have also found on evidence that round about the property in suit, a number of buildings have been constructed. The main question therefore, which falls for determination in these appeals is whether there exists a custom of pre-emption in Moza Bichrali alias Nayanagar. In Ajmer-Merwara where the properties in suit are situated, custom of pre-emption is a creation of the statute law viz , Regulation No. III of 1877 (hereinafter called the Regulation). Secs. 6, 7, 8 and 9 of the Regulation are as follows - Sec. 6 - Right of pre-emption - The right of pre-emption is a right of the persons hereinafter mentioned or referred to, to acquire in the cases hereinafter specified, immovable property in preference to all other persons. Sec. 7 - Presumption as to its existence - Unless the existence of any custom or contract to the contrary is proved, such right shall, whether recorded in the settlement-record or not, be presumed : - (a) to exist in all village-communities, however constituted; and (b) to extend to the village-site, to the houses built upon it, to all lands and shares of lands within the village-boundary, and to all transferable right affecting such lands. Sec. 8 - Its existence in towns to be proved - The right of pre-emption shall not be presumed to exist in any town or any sub-division thereof, but may be shown to exist therein, or in any sub-division thereof, and to be, exercisable therein by such persons and under circumstances as the custom prescribes. Sec. 9 - Devolut on of right when property to be sold or fore-closed is proprietary tenure - If the property to be sold or foreclosed is a proprietary tenure, or a share of such a tenure, the right to buy or redeem such property belongs, in the absence of a custom to the contrary, - 1st, to co-sharers of such tenure, in order of their relationship to the vendor or mortgagor; 2ndly, 1o co-sharers of the whole Mehal in the same order; and 3rdly, to any member of the village community. Where two or more persons are equally entitled to such right, the person to exercise the same shall be determined by lot." The question is whether Moza Bichrali is a village community within the meaning of sec. 7 of the Regulation or is a part of the town of Beawar. In case it is a village community, right of pre-emption shall be presumed to exist unless the existence of any custom or contract to the contrary is proved to exist. If on the other hand it is a town or any sub-division there will be no presumption of such right and it will have to be proved. It is admitted on behalf of appellant that if the case does not come within the purview of sec. 7 then the suits must fall because custom of pre-emption in the town of Beawar has not been proved. The expression 'village communities' has not been defined in the Regulation. As to the meaning of expression 'village communities' in the case of Rahi-muddin vs. Rewal (1), which was a case governed by Punjab Laws Act (XII of 1878) their Lordships of the Privy Council remarked that : - "The expression 'village community' in the Punjab Laws Act (XII of 1878) is and used to denote a village community of the typical sort consisting of members of one family or one clan holding the village lands in common, and dividing between them the agricultural lands according to the custom of the village. It seems rather to be used in a popular sense to denote a body of persons bound together by the tie of residence in one and the same village, amenable to the village customs, and subject to the administrative control of the village officers. There seems to be no reason why a village community should be confined to the landowners in the village. In their Lordships' opinion occupancy tenants are members of a village, community within the meaning of the Act, and so are all persons in an inferior position who belong to the village, though they may be unconnected with the land and not entitled to any right of pre-emption under the Act of 1878." As pointed out by their Lordships of the Supreme Court in Shri Audh Behari Singh vs. Gajadhar Jaipuria (2) : "Opinions differ as to whether the custom of pre-emption amongst village communities in Punjab and other parts of India was borrowed from the Muhammadans or arose, independently of the Muhammadan law, having its origin in the doctrine of 'limited right which has always been the characteristic feature of village communities, vide - 'Dilsukh Ram vs. Nathu Singh, 98 Pun Re 1894. Possibly much could be said in support of either view and there is reason to think that even where the Muhammadan Law was borrowed, it was not always borrowed in its entirety. It would be useful to refer in this connection to the following observations of the Judicial Committee in AIR 1914 PC 11 at p. 14. "In some cases the shares in a village adopted or followed the rules of the Mohammedan Law of pre-emption, and in such cases the custom of the village follows the rules of the Mohammedan law of pre-emption. In other cases, where a custom of pre-emption exists, each village community has a custom of pre-emption which varies from the Mahomodan law of pre-emption and is peculiar to the village in its provision and its incidents. A custom of pre-emption was doubtless in all cases the result of agreement amongst the share-holders of the particular village, and may have been adopted in modern times and in villages which were first constituted in modern times.'' Secs. 6, 7 and 8 of the Regulation exactly correspond to secs. 9, 10 and 11 of the Punjab Laws Act, 1879. Although the Punjab Laws Act of 1878 (No. XII of 1878) has been amended since then, yet in Ajmer-Merwara provisions of the Regulation have remained unchanged. From what has been observed by their Lordships of the Privy Council in Rahimuddin's case (1), it follows that 'village community' used in sec. 7 of the Regulation means persons living in the same place under the same laws and regulations. The expression 'village communities' also occurs in sec. 7 of the Oudh Laws Act (No. XVIII of 1876) but under sec. 10(a) of the Punjab Laws Act the right of pre-emption was presumed "to exist in all village communities however., constituted" where as the corresponding clause of the Oudh Laws Act contains additional words "and whether proprietary or under-proprietary, and in the cases referred to in sec. 40 of the Oudh Land Revenue Act, 1876". The distinction in the provisions of the two Acts has been noticed in several Oudh cases. See Janki Pershad Vs. Sabob un Nisa (3), where Chamier A.J.C. summed up his conclusions thus - "In short secs. 10 and 12 of the Punjab Laws Act read together suggest that the words 'village community used in sec. 10 mean persons living in the same place under the same laws and regulations whereas secs. 7 and 9 of the Oudh Laws Act read together suggest that the words 'village community' in sec. 9 mean the proprietary or under-proprietary bond, i.e., body of people having common rights, privileges or interests, the question of residence being left out of consideration." and Ramdayal Vs. Chaudhri Muhammad Abdul Basit(4), where on a difference of opinion between Evans A.J.C. and Chamier, J.C. Piggott, A.J.C. held agreeing with Chamier, J.C. that "Village community under the Oudh Laws Act consists of the whole body of persons possessing rights as proprietors, under-proprie-tors or heritable lessees in village lands, and that the exclusion laid down in sec. 8 of the said Act must be applied to the situation of the lands, and not to the residence of the said community. and further - "the existence of! an inhabitable site is not necessary for the establishment of a village community." The object underlying sec.7 of the Regulation as also of the corresponding provisions in the Punjab Laws Act and Oudh Laws Act was to preserve the integrity of the village and the village community. Existence of an inhabited site may or may not be the sole test for the establishment of a village community; the question is whether having regard to all the circumstances which have bearing on the question, it can be held that a village community continues to exist in Moza Bichrali. The facts as they emerge from the record are that there is no inhabited area known as Moza Bichrali or Nayanagar. Village Bichrali might have existed in the past, but there was no trace of it at the time the properties were sold and it seems that the village has been absorbed in the town of Beawar which is also known as Nayanagar. Learned counsel for the parties in appeal No. 340 of 1958 who hail from Beawar town admitted at the Bar that there is now a Mohalla known as Mohalla Bichrali in the town of Beawar. The essential homogeneity of village community had broken long ago. The village has been absorbed in the town of Beawar where people belonging S;o different castes and creeds following different vocations reside. The remaining part of the village revenue area has now become a suburb of the town of Beawar and the lands therein without any assertion of right of pre-emption by the Khewatdars have been purchased by non-khewatdars who have constructed buildings, 'Bagichies' etc. and whose main pursuit is not agriculture. A part of revenue area too, has been included within the municipal limits of Beawar town since long and is subject to Municipal Regulations. Looking to all these circumstances, it would be stretching the law too far to say that there existed a village community in Moza Bichrali at the time of sale of the suit properties. That being so sec. 7 of the Regulation has no application in the case and the plaintiff, therefore, cannot succeed. On behalf of the appellant reliance is placed on the entries in the Wajib-ul Arz of the village and a few judgments wherein custom of pre-emption was recognised in Moza Bichrali. No doubt the entries in the Wazib-ul-Arz are a presumptive proof of the existence of custom and the judgments too wherein the custom of preemption has been given effect to, afford valuable piece of evidence, but so far as the entry in the Wajib-ul-Arz is concerned, the date of the entry is not known and it might have been prepared at the time when there existed a village community in that Moza. In the following judgments Dula vs. Teja Appeal No. 15 of 1938, decided by the District Judge, Ajmer-Merwara on 13.12.1939, in Civil Suit No. 4 of 1914, Seth Nath Mal vs. Satti Dan of Nayanagar, decided on 31.12.1915 by Sub-Judge First Class, Beawar and in suit No. 142 of 1918 Rai Bahadur Seth Champalal vs. Seth Jodhraj, decided on 6.12.1920 by Sub-Judge First Class, Beawar, custom of pre-emption was of course recognised in Moza Bichrali. The respondents have also produced the following judgments in Allah Bux vs. Hira Suit No. 11 of 1927, decided on 18.12.1927 by Sub-Judge, First Class, Beawar, The United Cotton Press, Nayanagar vs. Illahi Bux and other Civil Suit No. 70 of 1913, decided on 31.12.1915 by Sub-Judge, First Class Beawar, Madholal vs. Munshi Vinodilal Civil Suit No. 190 of 1922, decided on 12.4.1931 by Sub-Judge First Class, Beawar, Judgment of the Additional Judge, Ajmer in Appeal from the decision in Civil Suit No. 70 of 1913, decided on 18.6.1939 and judgment in appeal from the decision in Civil Suit No. 11 of 1927 decided on 22.1.1930 wherein the plea with regard to custom of preemption in Moza Bichrali was negatived. But the decisions produced by either side do not lend much assistance because the ratio of the decision is mostly the character of the land rather than the existence of the village community. In suit No. 142 of 1918 Rai Bahadur Seth Champalal vs. Seth Jodhraj, decided on 6.12.1920 the learned Sub-Judge of course having regard to the fact that the land in dispute in that case was situated in Moza Nayanagar, was assessed to land revenue, was a proprietary tenure, was within the village boundary and was a part of the village site held that Mauza Nayanagar and the Khewatdars of Mauza Nayanagar are a village community. But in this case too the fact of non-existence of an inhabited area in Mauza Bichrali was not considered. Besides, since this judgment was given, great changes have occurred in the area which have broken the integrity of the village community as stated above. Mention may also be made of one decision of the learned Judicial Commissioner Ajmer-Merwara in the Firm Lakshmi Ginning Factory, Beawar vs. Q. Houlton lady Doctor, Beawar(5) which also related to a plot of land situated in a suburb of Beawar which was formerly known as Fathpuri II. It was observed by the learned Judicial Commissioner that: "The test in sec. 7 of the Regulation is the character of the community" in all village communities' and the been enacted for the benefit of village communities as such, it is, I think fundamentally a question of fact. It has been found by the Courts below in this case that the people inhabiting this area are occupied partly in industry and partly in trade : but not in agriculture which is the standard business of a village : also that physically this area has the character of a town and not of a village; and lastly that it is administered as part of a municipal town only. In view of these facts I agree with the lower court in thinking that it would be travesty of the law; in fact I think it would amount to a legal fiction, to hold that it is governed by a section which is specially intended to apply to village communities." The same reasoning applies to Moza Bichrali where the suit properties are situated. On the facts stated above I hold agreeing with the courts below that there existed no village community in Mauza Bichrali at the time the sales in question took place and presumption of right of pre-emption under sec. 7 of the Regulation cannot be raised in these cases. There is yet another ground on which these appeals must fail. The right of pre-emption is a weak right and the right in the pre-emptor should exist not only at the date of the sale but also at the date of the suit and the decree. This is a rule of Mohammadan Law and is stated by Tyabji in his Treatise on Mohammedan Law, 3rd Edition (1940) in 541 D (1) thus : "The pre-emptor must, at the time of the sale, and until the institution of a suit to enforce pre-emption, and, semple, also until decree for pre-emption is passed by the trial court, have the status by virtue of which he claims pre-emption, viz. the status of co-sharer the or participator or neighbour as the case may be." The plaintiff based his right of pre-emption on the ground that he is a Khewatdar of the village. By the Rajasthan Zamindari and Biswedari Abolition Act, 1959, all right, title and interest of the Biswedars which term also includes Khewatdars in the estate from the date of vesting have been abolished and now vest in the State of Rajasthan. The plaintiff has therefore, no interest left in the lands which he was formerly holding. [The only right which he can claim after the vesting of the estate in the State of Rajasthan is that of Khudkasht of those lands which were recorded in the annual registers as Khudkasht in his name. But on that basis he cannot claim any right of pre-emption. The plaintiff now does not belong to any class described in sec. 9 of Regulation and no decree for preemption can be passed in his favour. In civil appeal No. 340 of 1958, the courts below have found that the plaintiff had waived his right of pre-emption inasmuch as he had declined to purchase the land in question when it was offered to him by the vendors as also he had refused to sign the notice issued to him by the Collector who was the competent authority to accord sanction for sale. The notice was to this effect that Jetha had agreed to sell his land mentioned in the notice to Jagannath and Harinarain for a consideration of Rs. 4000/- and because the vendee was a non khewatdar and a non agriculturist, therefore, if any khewatdar wanted to purchase the land he may prefer objections within 15 days after which his objections will not be entertained. It has also been found by the courts below that plaintiff got knowledge of the sale some 15 days after the date of sale but he kept quiet for four months and the defendants spent Rs. 2000/-in sinking a well and constructing a compound wall in the suit land.
(3.) THE contention of the learned counsel for the appellant is that notice was issued by the Collector before the agreement of sale was made in favour of the vendees and it was not issued under sec 10 of the Regulation and as such it cannot operate as waiver against (he plaintiff. It may be pointed out that the notice issued by the Collector clearly mentions that the vendor has agreed to sell the land to the vendees for a consideration of Rs. 4000/- and cannot be assailed on the above noted ground. THE absence of a notice under sec. 10 of the Regulation also does not bar the plea of waiver if it can be established on other grounds. In the present case it has been found proved on evidence that the plaintiff had - (a) declined to purchase the land when it was offered to him by the vendors. (b) had refused to sign the notice issued by the Collector before he sanctioned the sale inviting objections to the sale in favour of vendees who were non-Khewat-dars. (c) having come to know of the sale kept quiet for a period of four months. (d) allowed the vendees to spend money in sinking a well and constructing a compound wall. In such circumstances the courts below were right in holding that he had waived the right of pre-emption. THEre are no grounds to interfere with this finding. These appeals must therefore, fail and are hereby dismissed. But in the circumstances of the case, I leave the parties to bear their own costs of these appeals.;