Full Judgment
Lindsay and Sulaiman, JJ.
1. This is a plaintiff's appeal arising out of a suit for pre-emption. Under a sale deed, dated the 1st of March, 1920, certain plots, described therein as sir plots, within the zamindari of the executant were sold to the vendee. A suit was brought to pre-empt the sale by enforcement of the right of pre-emption. Various pleas were taken in the written statement; but at the time when issues were framed by the first court, the denial of the existence of custom does not seem to have been pressed, with the result that there was no issue framed as regards the existence or non-existence of a custom of pre-emption. The learned Munsif, in his judgment, did not deal with this matter at all. The suit was decreed. On appeal, the defendants raised before the lower appellate court the point, that the wajib-ul-arz on which reliance was placed by the plaintiff did not apply to the sale in question. The learned District Judge, relying on the cases of Ishri v. Thakur Din Weekly Notes 1882 p. 192 and Hazari Lal v. Ugrah Rai Weekly Notes, 1884 p. 103, came to the conclusion that the transfer of the sir plots was not1 such a transfer of the share in the zamindari as would let in the right of pre-emption in favour of a co-sharer. In this view of the matter, he dismissed the suit.
2. The plaintiff has come up in appeal and challenges the finding of the lower appellate court. Unfortunately, the khewat of this village is not on the record, but the sale deed as well as the admitted facts show prima facie that these sir plots are within the zamindari of the co-parceners. There is nothing to suggest that they are isolated plots and lie outside the 16 annas share. The point was not seriously pressed at all and was raised for the first time before the learned District Judge. We may also note that the case of Hazari Lal v. Ugrah Rai Weekly Notes 1884 p. 103 relied on by him was overruled by a Full Bench case, Sital Prasad v. Amtul Bibi (1885) I.L.R. 7 All. 633 and also by another Full Bench case, Safdar Ali v. Dost Muhammad (1889) I.L.R. 12 All. 426. It is clear that the interest of an owner in sir plots is a proprietary interest, and the transfer of the sir plots is in fact a transfer of his proprietary interest. Under the clause of the wajib-ul-arz, whenever a proprietor transfers his haqiat (property), a right of pre-emption accrues. We, therefore, think the suit should not have been dismissed on the ground above-mentioned. The result is that this appeal is allowed, the decree of the lower appellate court is set aside and that of 'the court of first instance is restored with costs.