JUDGMENT

Bennett, J. - These appeals raise the same question, whether a right of pre-emption exists in a village called Panti, which is described as forming part of Taluqa Dasaon Saltanat, Pargana Atraulia, District Azamgarh.

2. Three suits were brought by residents of this village claiming pre-emption in respect of separate sales. Two of these suits were instituted in the Court of the Munsif and the third in the Court of Civil Judge of Azamgarh. The Munsif dismissed the suits, holding that there was no right of pre-emption in Panti. The Civil Judge decreed the suit in his Court, holding that there was; and on the same date, 29-4-1943, he allowed appeals from the judgments of the Munsif and decreed both these suits also. Hence the first appeal and two second appeals in this Court.

3. At the settlement of 1873-1874 Panti was one of a number of villages, 16 in all, comprised in Taluqa Dasaon Saltanat. A lady, the daughter of one Saltenat Singh, is shown in the wajib-ul-arz of that settlement as the absolute owner.

4. The complete wajib-ul-arz is not on the record. All that we have is the first part of it, referring to the whole Taluqa as a mahal consisting of 16 villages, and containing the remark that as there is no cosharer it is unnecessary to record any conditions relating to preemption. There follow appendices for individual villages. Copies of three of these are on the record, Panti, Jogipur and Hathipur. The appendices are described as wajib-ul-arzes for these mauzas or villages. That of Panti suggests that there is no right of pre-emption in that village, while those of Jogipur and Hathipur show that such right exists in them.

5. It is also to be noted that the right in Jogipur and Hathipur could only have been enjoyed by petty proprietors when the wajib-ul-arzes were prepared. Whether there were at the time petty proprietors in the other villages does not appear.

6. The Taluqa is now held by a number of co-sharers and the question for consideration is whether the right of pre-emption should be held to exist in Panti among the superior proprietors.

7. It is conceded that no right of pre-emption is shown by the wajib-ul-arzes to exist in any part of the Taluqa except the two villages of Jogipur and Hathipur, but it is argued that S. 5, Pre-emption Act of 1922 extends the right from part of the mahal to the whole mahal.

8. The first part of S. 5, Agra Pre-emption Act, 1922, run's thus:

(1) A right of pre-emption shall be deemed to exist only in mahals or villages in respect of which any wajib-ul-arz prepared prior to the commencement of this Act records a custom, contract or declaration.

(a) recognizing, conferring or declaring a right of pre-emption, expressly or by necessary implication, whatever its extent and in whatever form it may be expressed.

9. It has been held that the latter words "whatever its extent and in whatever form it may be expressed" imply that even if the right entered in the wajib-ul-arz is limited in its scope and applies either to a limited body of co-sharers or to a limited area, a right in the whole mahal or village is to he deemed to exist. It was so held by Sulaiman A.C.J., in the Full Bench case Riazuddin Vs. Mt. Phula Devi and Another, AIR 1929 All 977 and also in Lalta Prasad Vs. Chunni Singh and Another, AIR 1929 All 385 and the same construction was put upon the words in the Full Bench case by Mukherji J. who observed:

The result of the joint application of the two expressions "in respect of" and "whatever its extent" is that if in any mahal as to which a question of right of pre-emption has arisen, there be found to exist a wajib-ul-arz which contained a mention of pre-emption, applicable to any portion of the mahal, by virtue of the rule enacted by the Legislature, a right of pre-emption would be deemed to exist throughout the whole mahal.

10. The third Judge, in the Full Bench case, King J., did not touch in his judgment on this point but concurred generally in the conclusions of the other learned