Transfer of land by gift within three months of purchase is valid and an application for pre-emption in respect of such transfer is not maintainable.

M. P. Verma, J.

This second appeal arises out of a decision of the learned Subordinate Judge of Bihar, sharif passed in Title Appeal no. 52 of 1964, by which he reversed the judgment and decree of the learned Munsif of Bihar passed in Title Suit no. 52 of 1961.

2. The plaintiff is the appellant. He had brought a title suit for declaration of title and confirmation of possession, or, in the alternative, recovery of possession, in respect of 0.68 acre of lands in plot no. 3 of khata no. 8 with an area of 0.54 acre and plot no. 8 of khata no. 9 having an area of 0.14 acre. His case was that one Shaikh Moula Bux was the landlord of the touzi, in which this land lay. Though he was a co-sharer landlord, he managed the land of this touzi on behalf of all the co-sharers. On the 2nd August 1912, the plaintiff's father took this land from Shaikh Moula Bux in settlement under a registered deed after paying a salami of Rs. 105 and the rent having been fixed at eight annas annually. This rent was fixed in perpetuity. When the zamindari interest vested in the State of Bihar, the karmchari began to interfere with the possession of the plaintiff, who used to hold a hat over this area, and began realising tolls from the shopkeepers of that hat. This disturbance by the karmchari cast a cloud over the plaintiff's title and so he brought the suit.

3. The defence taken by the State of Bihar was that, by this settlement, the plaintiff had acquired the interest of a tenure holder and not that of a raiyat and, that being so, the interest of the tenure-holder vested in the State after January 1956.

4. The learned Munsif allowed the claim of the plaintiff holding that he "acquired a raiyati interest by the settlement; but, on appeal, this 'finding was reversed and the learned Subordinate Judge came to the conclusion that this settlement conferred permanent mokarari rights, that is, a tenure-holder's interest, on the plaintiff and, after the abolition of the zamindari, that interest vested in the State.

5. Mr. Ashghar Hussain, learned counsel for the appellant, has seriously contended that, on a plain reading of the deed of settlement, it is clear that it conferred raiyati interest on the plaintiff and not the interest of a tenure holder. This deed of settlement is Exhibit 1 and it has to be gone through and interpreted carefully. The learned Subordinate Judge appears to have been obsessed by the idea that this deed created perpetual mokarari interest in the settlee and that the land settled was put to no agricultural use by the plaintiff but he held only a hat in this area. This deed recites that Shaikh Moula Bux owned five annas and odd proprietary interest in the tonzi, but he was managing the affairs of all the co-sharers and an area of 1 bigha 5 kat has of land (ghairmazrua) was in his khas possession. The deed further clearly recites that the mokararidar, after properly cultivating the land, should appropriate the produce thereof and pay rent to the landlord. Further on, this deed also recites that the mokararidar was at liberty to construct houses on the land or lay out orchard and hold hat thereon or use it as kasht land or for other works. So a plain reading of Exhibit 1 shows that, by this settlement, only a raiyati interest was created in the plaintiff and not the interest of a tenure-holder. In Section 5 of the Bihar Tenancy Act, the term "tenure holder" has been defined to mean primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents

RESOLUTION

Heard the petitioners through their learned lawyers.

2. This is a petition in revision against the order dated 19-7-1969 of the learned Additional Collector, Saran setting aside the order dated 27-4-1966 of the learned Sub-divisional Officer, Chapra, who had rejected the application of opposite party Ram Sundar Giri for pre-emption in respect of plots nos. 5249 and 5172, Khata no. 629 in village Keshari Mathia, which