JUDGMENT

R. M. SAHAI, J.

( 1 ) THE short and the only question that arises for consideration in these appeals is whether a co- sharer of Khatedari rights of agricultural land is entitled to claim pre-emption under the Rajasthan Pre -emption Act, 1966 (hereinafter referred to as the Act ).

( 2 ) RIGHT of pre-emption has not been looked upon favourably as it operates, as a clog on the right of the owner to alienate his property. In Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi, AIR 1960 SC 1368 : 1961 (1) SCR 248 , it was observed that to (To) defeat the law of pre-emption by any legitimate means was not fraud. Therefore, availability of this weak or archaic right has to be construed strictly. In the Act, there is no provision extending the benefit of pre-emption to agricultural holdings. A person claiming pre-emption, therefore, has to squarely fall within the four corners of the provisions contained therein.

( 3 ) THE right of pre-emption is defined in Section 3 to mean, a right accruing under Section 4 of the Act upon transfer of any immovable property to acquire such property and to be substituted as the transferee thereof in place of and in preference to the original transferee. Section 11 of the Act entitles a person to bring a suit for pre-emption when a transfer has been completed. Transfer under clause (viii) of Section 2 of the Act means a sale, or a mortgage where the final decree for foreclosure in respect thereof has been passed. A transfer of immovable property for purposes of the Act, therefore, must be a transfer or mortgage. Sale has been defined by clause (vii) of Section 2 to mean, a transfer of ownership in immovable property in exchange for a price paid or promised or partly paid and partly promised. A co-sharer under Section 2 (i) of the Act is entitled to claim pre -emption by filing a suit under Section 11 of the Act. Since factually there was no dispute that each of the appellants are co-sharers in the Khatedari rights of the land transferred the entire dispute that shall clinch the issue is if the sale of the land amounted to transfer of ownership within meaning of Section 2 (vii) of the Act.

( 4 ) TO determine this it is necessary to examine the nature of Khatedari rights and if a transfer of such right amounts to transfer of ownership. A Khatedar tenant is one of the tenants mentioned in clause (a) of Section 14 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Tenancy Act) and clause (c) defines the circumstances in which a person may become a Khatedar tenant. Such a tenant has a right to bequeath his interest under Section 59 of the Tenancy Act and transfer his interest under Section 41 of the same Act on conditions specified in Sections 42 and 43. His interest is heritable under Section 40 as well. Is that sufficient in law to make him owner of the property? Is the transfer made by a Khatedar tenant is a transfer of ownership? A Khatedar tenant, admittedly, is a person by whom rent is payable under Section 43 of the Tenancy Act. The effect of it in law is that such a person cannot be deemed to be an absolute or unlimited owner which is necessary before the right of pre-emption can be exercised. In Butterworths Words and Phrases Legal Defined, Second Edition, Vol. 4, Page 61, ownership has been defined as under:"ownership consists of innumerable rights over property, for example, the rights of exclusive enjoyment, of destruction, alteration, and alienation, and of maintaining and recovering possession of the property from all other persons. Such rights are conceived not as separately existing, but as merged in one general right of ownership. "salmond summed up the concept of ownership as under:"summing up the conclusion to which we have attained, we may define the rights of ownership in a material thing as the general, permanent and inheritable right to the uses of that thing. "

( 5 ) AUSTIN in his book of Jurisprudence, 3rd Edition, Page 817 defines the right of ow