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First Appeal No. 138 of 1944, decided on 18th June 1946, from the order of Senior Sub‑Judge, Montgomery, dated 1st April 1944.

(a) Civil Procedure Code (V of 1908), O. XXII, rr. 3 and 11 Pre‑emption suit‑One out of three appellants dies and his legal representatives not brought on record‑‑Appeal of the deceased only abates.

In so far as Kanda appellant is concerned, the effect of the non- impleadment of his legal representatives within the time allowed by law is certainly to cause as abatement of his appeal. That, however, does not mean that the appeal has abated in its entirety.

The right of each pre‑emptor is a separate and independent right and the abatement of Kanda's appeal cannot possibly affect the rights of the other two appellants to get the relief sought by them in case they are otherwise found entitled to the same. [p. 247]

(b) Evidence Act (I of 1872) S. 59‑Original or copies of record -of‑rights not produced‑ Oral evidence held irrelevant and inadmis sible.

In the absence:, however, of the original records or their copies, the oral statement of the Naib‑Tahsildar with regard to their contents is not admissible in evidence and this part of the evidence of the Naib Tahsildar had, therefore, to be ruled out by us as irrelevant and inadmis sible.

Muhammad Amin Khan for Appellants.

Hans Raj Suchdev for Respondents.

‑A preliminary objection has been raised on the respondents' behalf that Kanda, son of Hidayat, appellant No. 3, died on 9th February, 1945 and his legal representatives have not so far been brought on the record. It was urged by the learned counsel that in consequence of the failure of the appellants to bring on record the legal representatives of Kanda within the time allowed by law the whole appeal should be deemed to have abated. In so far as Kanda appellant is concerned, the effect of the non‑impleadment of his legal representa tives within the time allowed by law is certainly to cause an abatement of his appeal. That, however, does not mean that the appeal has abated in its entirety. Jalla and Malla, the other plaintiffs‑appellants could have instituted a suit for possession of the whole land in suit by means of pre‑emption in the first instance without joining Kanda as a co, plaintiff and the mere circumstances that after the dismissal of their suit Kanda, although he joined in the filing of the appeal, is not longer on the record does not disentitle the other two appellants to prosecute the appeal. The right of each pre‑emptor is a separate and independ ent right and the abatement of Kanda's appeal cannot possibly affect the rights of the other two appellants to get the relief sought by them in case they are otherwise found entitled to the same.

This is a first appeal from the decree of the Senior Subordinate Judge of Montgomery dismissing the plaintiff's suit for possession by pre‑emption of 49 kanals and 7 marlas of land situate in the village of Kaure Shah Zarin. The circumstances giving rise to this appeal may be briefly stated as follows. Nand Lal, Karam Chand, Mohan Lal, Barkat Ram and Hari Chand, sons of Buta Ram and Mahla Ram, son of Darya Ditta Mal, Aroras of village Kot Deva Mal were in possession of 6/27th share of the land comprised in Khewat No. 14, Khatuni Nos. 1365 to 1371 situate in the village of Kaure Shah Zarin. In the revenue records they were shown as in possession as ghair dakhilkar naqdi guzar. In June, 1943, they sold their interest in the aforesaid land to Nauranga and Nura for a sum of Rs. 4,300 the mutation in respect of the sale having been sanctioned on 4th June, 1943. On 22nd June, 1943, Jalla, Malla and Kanda plaintiffs brought a suit for possession of the aforesaid land by means of pre‑emption. Nauranga and Nura vendees were impleaded as defendants Nos. 1 and 2 and the vendors were impleaded as defendants Nos. 3 to 8. The plaintiffs claimed a superior pre‑emptive right on the ground of being co‑sharers in the land sold. The suit was resisted by the vendees inter alia on the plea that the property sold being merely a tenancy‑at‑will the sale was not liable to be pre‑empted. One of the issues framed on the pleadings of the parties was whether the property sold could be subjected to a right of pre‑emption. The learned trial judge has dismissed the plaintiffs suit holding that the property sold was neither agricultural land nor village immovable property and that therefore, the sale thereof was not liable to be pre‑empted. The plaintiffs have come up in appeal to this Court.

This appeal was heard by a Bench of this Court on 21st May, 1946. The learned judge who heard the appeal were of the view that no definite information had been elicited in the trial Court as to the nature of the tenure of ghair dakhilkar naqdi guzar either from the Patwari or from any other revenue officer acquainted with the facts and that in order to enable the Court to pronounce judgment it was necessary that additional evidence should be examined with a view to the elucidation of the points arising in the case. They accordingly in the exercise of the powers vested in them under O. XLI, rule 27, Civil Procedure Code, directed that the Patwari of village Kaure Shah Zarin and the Naib‑Tahsildar of the Montgomery tahsil be summoned, together with all the revenue records which might tend to throw any light on the matter, for to‑day. In pursuance of this order, the Patwari of the village and the Naib Tahsildar of Montgomery tahsil have appeared and have been examined. Unfortunately, however, they could not produce all the relevant records. The earliest record relating to the village which is in the Patwari's custody is the record of rights compiled at the last Settlement of 1927‑28. Beyond describing the vendors at ghair dakhilkar naqdi guzars receiving batai from their own tenants and paying the land revenue for the time being assessed on the land together with 10 per cent as malikana, this record‑of‑rights throws no light on the question of the nature and incidents of the tenure. The Naib‑Tahsildar has stated that the records‑of‑rights prepared at the earlier. settlements are in the custody of the Sadar Qanungo and he himself is, therefore, unable to produce them. He further stated that he had studied those records and had discovered on a reference to the wajib‑ul‑arz contained in the record‑of‑rights prepared at one of the previous Settlements that the ghair dakhilkar naqdi guzars were competent to sell or mortgage the lands in their possession and that their status was similar to that of occupancy tenants. In the absence, however, of the original records or their copies, the oral statement of the Naib‑Tahsildar with regard to their contents is not admissible in evidence and this part of the evidence of the Naib‑Tahsildar had, therefore, to be ruled out by us as irrelevant and inadmissible. The Naib‑Tahsildar further stated that this tenure was not peculiar to village Kaure Shah Zarin only and was to be found in many other villages which were subject to river action. From the evidence led in the case it appears that the tenure is believed to enjoy some amount of fixity, that it is considered to be heritable and even transferable, and that it is believed to carry with it rights of a valuable and marketable nature. It does not appear to be possible to come to a correct decision as to the precise nature and incidents of this tenure on the materials on the record, and without such decision it cannot be said whether the sale in suit is liable to be pre‑empted. Unfortunately, the issue as framed by the learned trial Judge was somewhat ambiguous and did not bring out the real question in controversy between the parties. The judgment of the learned trial judge shows that he him self was not quite clear as to the precise nature of the question that he was called upon to decide. Under the ‑circumstances, I am of the opinion that further enquiry into the question of the nature and incidents of the tenure of ghair dakhilkar naqdi gazar is necessary. I would, therefore, remand the case to the learned trial judge under O. XLI, rule 25, Civil Procedure Code, for an enquiry and a finding on that question after receiving such evidence, oral or documentary, as the parties may choose to produce and would direct him to forward that evidence along with his finding to this Court by the 15th of October, 1946. The parties shall file such objections as they may have to the report within 10 days of the aforesaid date, after which the case shall be set up for hearing. The parties have been directed to appear in the trial Court on the 15th July, 1946.

‑I agree.

K. M. A. Case remanded.

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