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1939 Supreme(Oudh) 46
HIGH COURT OF OUDH
Hamilton, J.
Parbhu Dayal - Appellant
Versus
Bisheshwar Nath - Respondent
Decided On : 08-11-1939
JUDGMENT
Hamilton, J - This is an appeal against an appellate decision of the Civil Judge of Hardoi, who upheld the finding of the original Court that a muafidar is not entitled to pre-empt. The learned Counsel for the appellant here relies on Dalmir Khan v. Shamsher Khan (1927) 14 AIR Oudh 428 and, urges that if a qabzadar is entitled to pre-empt there is no reason why a muafidar should not. The custom of pre-emption may be presumed under the Oudh Laws Act to exist in all village communities however constituted, and whether proprietary or under-proprietary, and in the cases referred to in Section 40, Oudh Land Revenue Act. The appellant has not shown that he holds an under-proprietary right by virtue of Section 107(H), Oudh Rent Act, so that he must have recourse to Section 40, Oudh Land Revenue Act of 1876. This Section states that the settlement officer shall, in accordance with the provisions of the Oudh Sub-settlement Act, 1866, so far as they are applicable, determine the rent to be paid to the proprietor by all under-proprietors in a mahal, and by all holders of heritable, non-transferable leases, whose rent has not been fixed by contract. The appellant must therefore show that he is a holder of a heritable, non-transferable lease whose rent has not been fixed by contract and whose rent has to be determined by the settlement officer. He is a muafidar paying no rent and it has not been shown that his rent has to be determined by the settlement officer under Section 40. Consequently as the appellant is not helped by Section 40 and he is not either an under-proprietor or a proprietor, there can be no pre-emption under the Oudh Laws Act. The appeal is therefore dismissed with costs.
