JUDGMENT Lindsay and Kanhaiya Lal, JJ.
1. The facts of this case may be briefly stated as follows:--On the 17th of January, 1919, one Panna Lal, who owned a one anna six pies share, sold a plot comprised in that share, namely, plot Mo. 177 together with two trees to Sahdeo and others defendants.
2. On the 20th of September 1919, Panna Lal sold his entire one anna and six pies share to the same persons.
3. A suit for pre-emption was brought by the plaintiff appellant, Ram Gobind Pande, for the purpose of pre-empting both these sales.
4. It has been held by both the courts below that the plaintiff cannot pre-empt the first sale, that is to say, the sale of the isolated plot, on the ground that he had notice of the sale and had an opportunity of exercising his right to pre-empt which he refused to avail himself of It must be taken, therefore, for the purposes of the present decision that the first sale is not liable to pre-emption.
5. The question, therefore, remains whether the plaintiff is entitled to succeed in his suit for pre-emption so far as it concerns the sale of the one anna six pies share which as we have said, was carried out on the 20th of September, 1919. The finding of the court below is that the suit must fail on the ground that the vendees had already become co-sharers in the village by reason of their having purchased the plot No. 177 under the sale-deed executed on the 17th of January, 1919.
6. It has been strongly contended here that this purchase did not give the vendees the status of co-sharers in the village (hissedaran mauza), to quote the words of the wajib-ul-arz.
7. There is a great deal of case-law in the decisions ot this Court regarding the position of persons who have purchased isolated plots of land and the question has arisen time and again for decision whether or not the purchasers of such plots are for the purposes of pre-emption to be deemed co-sharers in the village. The cases fall into different categories which depend upon the nature of the land which is purchased. We have for example, cases of purchases of plots of muafi land not assessed to revenue. Again we have other cases known as arazidari; cases where sales have been made of certain isolated plots of land which are assessed to revenue but which nevertheless are outside the mahal.
8. And, lastly, we have cases like the present where a plot sold is within the mahal and forms a portion of a 'defined share in the village, that is to say, a defined area of land forming part of a definite share assessed to revenue.
9. This latter class of case has been dealt within a series of decisions beginning with the Full Bench decision of the court in Safdar Ali v. Dost Muhammad (1890) I.L.R. 12 All. 426. In that case it was held that where a person purchased a plot of land situated within a share in a village, he was to be deemed a co-sharer in the village, and it was held in the case reported in Dakhni Din v. Rahim-un-nissa (1894) I.L.R. 16 All. 412 that such a person would be treated as a co-sharer in the village even though his name did not appear in the revenue papers.
10. Another case on this point is to be found in Ali Husain Khan v. Tassaduq Husain Khan (sic) I.L.R. 28 All. 124, That case is, so far as we can see, on the same footing as the case with which we are now concerned. It is not necessary for us to refer to the decisions on the other classes of cases for clearly they would not be applicable in the present instance. Here we are dealing with a plot of land comprised in a one anna six pies share which is assessed separately to revenue, and which is recorded separately in the khewat. That being so, the case falls within the principle laid down in Ali Husain Khan v. Tassaduq Husain Khan (sic) I.L.R. 28 All. 124. It is true that there have been other decisions of this Court which seem to point in a contrary direction. One. of these to which we have been referred is to be found in 15 Indian Cases 251. But there the facts are not fully set out and it is impossible to gather from the language of the report what was the particular nature of the plots m question in that case.
11. We are satisfied, therefore, with the decision of the court below in this particular case that the vendees who purchased this plot No. 177 on the 17th of January, 1919, were entitled to claim the status of hissedaran mauza and that being so, we hold that the suit of the plaintiff was rightly dismissed. The appeal, therefore, fails and is dismissed with costs.