Patna High Court
Keshab Singh vs Bansi Singh on 28 March, 1919
Equivalent citations: 52IND. CAS.31
JUDGMENT Roe, J.
1. In this case the appellant is dis-satisfied with a decree of the Court of the Subordinate Judge of Muzaffarpur dismissing his suit upon a claim to pre-emption. The facts of the case upon investigation appear clearly to be as follows:
The property sold was a separate touzi number formed by partition from a parent estate. The plaintiff was the owner of another mahal formed by the same partition from the same parent estate. The majority of the lands had been divided, but joint between the parties were left a well, certain, roads, a tank, a number of brahmottar and fakirana holdings and two holdings stated in the schedule of lands left common to be occupancy holdings. The learned Subordinate Judge found that the mere creation of a separate estate severed completely all connection between the plaintiff and the vendor of the share sold, and upon this ground alone, without entering into the question whether the ceremonies necessary to pre-emption had been performed, dismissed the suit. In appeal to this Court it is urged that the partition in question was not necessarily a complete partition, and that, therefore, before the Subordinate Judge could say that there were no lands of the parent mahal left undivided, evidence should have been taken as to, whether the plaintiffs were in fact co-sharers in benefits to be derived from lands left undivided between the parties. On the other side it is urged that the point has been settled by concurrent decisions of the Courts of, Allahabad and of Calcutta, beginning in the Allahabad Court from the case of Maya Ram v. Lachho 2 A. 631 : 1 Ind. Dec. (n.s.) 980 and in the Calcutta Court from Lala Puriag Dutt v. Shaikh Bundah Hossein 16 W.R. 225 : 7 B.L.R. 42. The facts of the latter case are somewhat different from the case before us, for in the body of the judgment it is distinctly stated that everything which was worth dividing was divided and the parties only remained jointly interested in what was either utterly worthless or more probably was treated as public property in the same way as roads. The Allahabad case, however, is directly in point. It was taken on appeal to the Judicial Committee [Lachcho v. Maya Ram 5 A. 158 : 10 I.A. 1 : 4 Sar. P.C.J. 405 : 3 Ind. Dec. (N.S.) 197 (P.C.). Their Lordships state the law to be as follows: ''Now whether the thok comprised the divided lands, which were recorded as belonging to Ibrahim alone, or included the undivided lands which were appurtenant to those divided lands, the plaintiff was no co-owner with Ibrahim. She was not a joint tenant, nor a tenant-in common with him as to the divided portion of the lands; if she were a tenant-in-common of the undivided lands, that did not make her an owner of Ibrahim's) share in those lands. A tenant-in-common is the owner of his own share; but he is not an owner of the other tenant-in-common's share. It appears, therefore, to their Lordships that the plaintiff was not an owner of the thok which was sold." This disposes of the plaintiff's contention that he was sharik or co-owner in the mahal sold. It is contended, however, on behalf of the appellant that if his claim as a sharik fails, he is still entitled to come in as a pre-emptor in the second degree or khalit, that is, one who is a sharer in the appurtenances of the estate. But it cannot be said that the roads or the well, or the tank or the rent-free land or the occupancy holdings left undivided were appurtenances to the mahal. By the term appurtenances is meant facilities or amenities peculiar to the owner of an estate but derived not from the estate itself but by easement from the estate of another. In the case before us the roads and well, etc., which the plaintiffs ask us to regard as appurtenances to the mahal are not part of the estate of another. Common tenancy in these roads and wells is not an appurtenance to the plaintiffs' estate, but actually a part of it.
2. I would dismiss this appeal with costs.
Coutts, J.
3. The principal ground for allowing the plaintiffs the right of pre-emption, which is urged before us, is that the plaintiffs have a right as shafi-i-khalit or co-sharers in the appartenances of the estate, and the decisions in Mahtab Singh v. Ram Tahal Misser 10 W.R. 314 : 6 B.L.R. 43 note and Jahangeer Buksh v. Bhickaree Lall 11 W.R. 71 are principally relied on. Neither of these oases, however, assist the appellants, for in both cases the parties were not owners of separate mahals but of separate pattis, and there was no perfect partition, In the present case, however, although some portions of the original mouza were not partitioned, there was a complete partition and separate mahals with separate tauzi numbers were formed.
4. This matter has been fully discussed in Abdul Rahim Khan v. Kharag Singh 15 A. 104 : A.W.N. (1892) 240 : 7 Ind. Dec. (n.s.) 783 and Munna Lal v. Hajira Jan 7 Ind. Cas. 404 : 33 A. 28 : 7 A.L.J. 879. The first of these cases is exactly in point, and in both these oases it was held that when there has been a perfect partition, although certain properties--a village chaupal, wells, tanks, and such other properties--were left undivided, no right of pre-emption on the ground of common appurtenances existed. The test appears to be whether or not there has been a perfect partition. The formation of separate mahals with separate tauzi numbers is clear indication of such a partition, and I agree that this appeal must be dismissed with costs.