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ALLAHABAD HIGH COURT
Lalta Prasad - Appellant
Versus
Chunni Singh & Anr. - Respondent
Decided On : 18-01-1929
JUDGMENT
1. In this case part of the resumed muafi land comprised in one khewat and assessed to Government revenue has been sold. The plaintiff is a cosharer in this very khewat. An earlier wajib-ul-arz prepared for the village records a custom of pre-emption, but there is also a recital in it to the effect that the cosharers of the village have no concern with the resumed muafi. The defendants are strangers. The Court of first instance decreed the claim for pre-emption, but on appeal the District Judge has dismissed it, holding that having regard to the recital in the wajib-ul-arz there is no right of pre-emption in muafi lands. We are unable to concur in this view. When a right of preemption is recorded in a wajib-ul-arz of the mahal, a right must be deemed to exist, in view of the provisions of Section 5, of the Act. The question as to what persons are entitled to exercise this right is to be determined by reference to Section 12 of the Act and not to the recitals in the wajib-ul-arz. Under the last mentioned section when a petty proprietary interest is sold, coparceners in that interest have the first right of pre-emption The holders of these resumed muafis are holders of specific plots in the mahal and are obviously not entitled to take part in the administration of its affairs and do not own any land in the mahal jointly with the cosharers. They are accordingly petty proprietors within the meaning of 8. 4, Sub-clause (7). The plaintiff therefore has the first right of preemption. We accordingly allow this appeal and setting aside the decree of the lower appellate Court, restore that of the first Court with costs in all Courts including in this Court fees on the higher scale.
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