P (PLP)

MUHAMMAD SHARIF, J.‑‑This and Regular. First Appeal No. 21 of 1949 by the vendees, arise out of pre‑emotion suit Nos. 64 and 63 of 1947 respectively and as the points of law and fact, involved in both, are the same, these may conveniently be decided together. On 20th of February 1946, Ram Piara and Mulkh Raj defendants 4 and 5, sold 126 kanals of land for Rs. 22,400 in favour of Sammun, Shera and Manak, defendants 1 to

3. This is the subject‑matter of Suit No. 63 of 1947. Similarly, on the same day, another area of 2121 kanals of land was sold by the same vendors to Gul Muhammad, Manak and Sardar Bakhsh for Rs. 37,

823. The plaintiff‑respondents instituted two suits for pre‑emotion on the ground that the lands sold, were situated in Patti Daultani of village Lilhani in which they also owned land and that the vendees were not the owners in that Patti. Under the first transaction the plaintiffs e‑pressed their willingness to pay Rs. 14,C00 and under the second, Rs. 23,000 as these, according to them, were the prices really fixed and paid. The defendants denied that there were any' recognized sub‑divisions in the village, and the fact that the plaintiffs were co‑sharers in the Patti Daultani would not entitle them to a, superior right. It, was also pleaded that the prices mentioned in the sale‑deeds were fixed and paid. The learned Senior Subordinate Judge, Sargodha, who tried both the suits, by his judgment of 16th of February 1949 held that the prices mentioned in the sale‑deeds were really fixed and paid; that Patti Daultani was a recognized subdivision of the village and the plaintiffs were, therefore, granted decrees as prayed for. The vendees have now come up in appeal. It was vehemently contended by the learned counsel for the appellants that Patti Daultani was not a recognized sub‑division of the village and the plaintiff's consequently could not claim a right to pre‑empt on the ground alleged in the plaint. Reliance was placed upon the footnotes of the pedigree‑tables prepared in the years 1856 and 1891‑

92. The remarks in the pedigree‑table of 1856, marked Ex. D. 11, assert that, about six hundred years ago, one Sheikh Baraham, a holy man, planted a garden on a portion of the land taken from the owners of the village Walwalay. For about two hundred years, he and his descendants ‑lived there. The place was named Lilhani after the name of one Lil, with whom it was said to be connected. It became desolate during the Afghan depredations and the residents left and scattered in the neighbouring villages. About sixty years back, the owners returned and made the village abad and gave it the old name, which continues till today. It was not deserted since, then and the entire area of the village was divided according to ‑capacity and each co‑sharer had nothing to do with the other. There was no Patti in the. village. Exhibit P. 8 is a copy of the remarks appearing below the pedigree‑table of the years 1891‑

92. It contains the declaration as to tarafs and pattis. It mentions that the Patti is known as Patti Daultani after the name of their ancestor Daulat. It has nothing to do with the other Patti, ,so far as measure of ownership is concerned. Inside the Patti, possession is the measure of ownership of the area shown in the Settlement Record. The shamilat area is joint in proportion to khewat. Exhibit P. 9 is a statement by the proprietors at the time of Settlement of 1891‑92, about the history of the village. It says that eleven generations ago. Sheikh Baraham, the common ancestor of the proprietors, came from Jhelum side, took a small area of land from the Dewana tribe, who were the owners of this tract, and turned it into a garden and devoted himself to the worship of God. He and his successors lived there for consider. able time. They brought the land under cultivation and sank wells. During the invasion by the Afghans, they abandoned this village and settled in the neighbouring villages. When peace Aturned, proprietors also returned to their old village, in the company of the ancestors of the other tribes and settled in the village. They brought land under the plough and the ownership was measured by the area in possession and the rest was known as the shamilat deh. The village common land was partitioned in proportion to the khewat shares and constituted into six dheris i.e. pattis. The proprietors freely chose their pattis. Since the said partition, the six pattis have continued and are still known by the old names. On the basis of the history of the village detailed above, it was urged by the learned counsel for the appellants, that the pattis in the village could not be said to, form distinct sub‑divisions, which could be recognized for the purposes of the Punjab Pre emption Act. These came into existence after 1856 and were created for administrative convenience or for fiscal purposes. They did not possess the necessary attributes of a separate " sub division " in the village. , The learned counsel for the respondents strenuously maintain ed, that the Legislature recognized " Patti " as a separate sub-division and, if any other minor sub‑division was proved, that too could be recognized: The learned counsel on both sides a referred to a large number of decided cases of this Court, in support of their respective contentions. The relevant portion of section 15 of the Pre‑emption Act of 191,3 is as follows :‑‑ " Subject to the provisions of section 14 the right of pre emption in respect of agricultural land and village immovable property shall vest‑ (c) Firstly, ............................. secondly., in the owners of the Patti or other sub‑division of the estate within the limits of which such land or property is situate ; thirdly, in the owners of the estates ". The words " owners of the Patti or other sub‑division of the estate" are to be found in the Punjab Laws Act of 1872, and the earlier Punjab Pre‑emption Act of 1905. The meaning and definition of " sub‑division " has formed the subject‑matter of a large number of cases cited at the Bar. 169 Punjab Record 1889 is a case under section 12 (d) of the Punjab Laws Act (IV of 1872) dealing with pre‑emption. The plaintiff owned land in the taraf, in which the land sold was situated. The vendee had land in the shamilat den. The question that arose, was, whether the tarafs, in which the village was divided, were or were not "sub‑divisions" within the purview, of section 12 (d) of the Punjab Laws Act, or whether they were made for revenue purposes only. It was held that there was nothing in section 12 to lead one to believe that the term "sub division " was to be construed with reference to any particular principle of division. All that was necessary to show was that the village was divided into recognized sub‑divisions and that was shown by the patwari's evidence and the other evidence in the case and the boundaries of the taraf were also entered in the Settlement Record. 69 Punjab Record 1893 lays down that the Patti might be further divided into thullas. The learned judges remarked, "On the whole, then, we are of opinion that the intention of the Legislature in enacting clauses (c) and (d) of section 12 of the Act (Punjab Laws Act) was not only to recognize the main or primary sub‑divisions of the village, but also any further divisions of such sub‑divisions as are well‑marked and authenticated by the Settlement Record and the history of the village. In 45 Punjab Record 1897, there were two tribes Sainis and Jets living in the village and the question for determination was, whether they were members of distinct paths. There was admittedly no territorial division between the two groups. The settlement record did not recognize any pattis. On the contrary, the shajranasab stated that there were none. The two sections held their lands for the most part in different portions of the village, but some lands were intermixed. Each section had its lambardar, through whom its revenue was paid. There was no unity of interests among the members of each section, nor any differentiation of interests between the two sections, to constitute them into distinct units in the village. There was no shamilat Patti and nothing common to one group of proprietors, in which the members of the other group had no interest. The shamilat of the village was later divided, not according to Pattis, but according to khewat, taking the village as a whole. The lands of all the proprietors, except the shamilat den, had been divided into individual holdings, and the only community of interest among the Saini's group was, that they belonged to the same caste, and the total quantity of land held by them, had been taken as amounting to a, fixed share, viz., 4 out of 18 ploughs of the village, in assessing the revenue. It was held, that there were no recognized sub‑divisions and the plaintiffs claim was negatived.

3. Punjab Record 1903 held that the, separate Pannas of the Hindus and the Muslims were distinct sub‑divisions and 69 Punjab Record 1893 was followed. 142 P. L. R. 1905 defines the tests that go to make a separate sub‑division. " There must be some one or more well defined attributes to justify treatment of a section of the village, as a sub‑division, as for instance, homogeneity of area or descent of the proprietors, and in determining the point, the first thing to be looked to, is the history of the village, so far as it can be ascertained from the Settlement Record." The same proposition was affirmed in 128 P. L. R. 1914, 21 P. R. 1915. 40 P. R. 1919, 67 I, C. 48, A. I. R. 1937 Lah. 703, A. I. R. 1947 Lah. 322 and A. I. R. 1948 Lah.

199. A. I. R. 1919 Lah. 292, a judgment by Chevis, J. did not lay down a different proposition. It was found by the lower appellate Court, that the pattis were really sub‑divisions and the case was remanded for decision on the merits. The vendees preferred an appeal against this order of remand. The learned, Judge refused to interfere, with the remark that it was a question of fact. It was nowhere held that the mere mention of the word " Patti" connoted a separate " sub‑division ". This would be clear from his own later judgment reported as 47

1. C.

48. The history of the village was considered as of very great importance and the earlier judgments, 169 P. R. 1889, 69 P.R. 1893 anti 45 P. R. 1897, were quoted with approval. From a careful perusal of the large number of cases discussed above, it will be perfectly clear, that the mere word "Patti ", whether in the record or otherwise, did not by itself establish a "sub‑division" of the village, to which reference is made in the Punjab Pre‑emption Act. A Patti may or may not be a " sub division " and it shall lie determined, on the history of the village the homogeneity of area or 'of descent. The Legislature has nowhere laid down, that the word "Patti" should immediately be taken to mean a separate " sub‑division ". It appears to have been used by way of illustration. Where a village is proved to have been divided into distinct and separate entities, be they known as tarafs, pannas or Pattis, each of the entities, shall be called a " sub‑division " within the meaning of clause (c) of section 15 of Punjab Pre‑emption Act of 1913. The Punjab Pre‑emption Act confers rights of pre‑emption upon persons owning property in an estate, and where a subdivision is proved to exist, a co‑sharer in that sub‑division, has a preferential claim to the purchase of the property contained in that sub‑division as against a person who is not an owner therein. The expression " estate " is explained in section 3 of the Punjab Land Revenue Act. It means any area, (a) for which a separate record of rights has been made ; or (b) which has been separately assessed to land revenue, or would have been so assessed if the land revenue had not been released, compounded for or redeemed ; or (c) which the Provincial Government may, by general rule or special order, declare to be an, estate, A village is not defined anywhere in the Land Revenue Act but, according to Mr. Thomason, it means " a parcel or parcel of land having a separate name in the Revenue records and know limits' Usually a village may be synonymous with an estate, but it is not necessarily so ; for it may have some of its outlying fields mixed up with the lands of another estate. Further, several " estates " may be included in a single village. The members of the proprietary body in a true village community, are often united by real or assumed ties of kinship. The admission of strangers into the brotherhood was always, in theory at least, a thing to be guarded against, and village customs in the matter of inheritance and pre‑emption are founded on this feeling. The Punjab Pre‑emption Acts of 1905 and 1913 and their predecessor, Punjab Laws Act 1872, in order to exclude strangers from a village, which has been considered a distinct unit, excluded persons who did not own any land in the village in competition with those who had. The same principle was extended to a minor sub‑division of village, where it constituted a distinct entity, sharing the necessary conditions, which bound the proprietors of a village in a common tie. Patti Daultani, viewed in the light of the principles enunciated above, has not been shown a distinct "sub‑division ". The earliest history recorded in the settlement of 1856, does not make it out, as a compact area, which could be differentiated from others, which came in later years to be known as different pattis. They owed their origin not to any compactness of area or, unity of descent but to causes other than historical. In all probability, they were brought into being, for purposes of collection of revenue. The plaintiffs could not, therefore, claim a superior right of pre emption merely on the ground, that they were " owners in the patti while the vendees were not ". For the reasons given above, the appeals are accepted and the suits for pre‑emption dismissed with costs throughout. K. M. A. Appeal accepted.