17th May 1907. The judgment of the Court was delivered by RATTIGAN, J. The facts are sufficiently clear from the judgments of the Courts below. Plaintiff is suing to pre-empt certain land which is stated to be situate within the limits of what is known as the Goal Mandi of Killa Gujar Singh. Admittedly at the time of the sale, in respect of which the present Claim is preferred, the land in suit was not "agricultural land" as that term is defined in the Punjab Tenancy Act of 1887. On the contrary, it is alleged by defendants, and not denied by plaintiff, that it is the site of buildings some 200 in number. The lower Courts have dismissed the claim on the grounds (1) that Killa Gujar Singh is not a village and does not contain a village community, and that, therefore, no pre-emption arises in favour of the existence of a castom of pre-emption; and (2) that plaintiff has failed to prove that he is by custom entitled to pre-empt the property. Plaintiff has preferred a further appeal to this Court, and we have heard lengthy arguments as to whether or not Killa Gujar Singh is a village and contains "a village community", within the meaning and for the purposes of Section 10 of the Punjab Laws Act, 1872. In this connection we may note that both sides rely on the definition of "village community " given by their Lordships of the Privy Council in the case reported as Rahim-ud-din v. Rawal (1). It seems to us, however, quite unnecessary to enter into a decision upon this extremely vexata questio. We may assume that to a considerable extent the quarter known as Killa Gujar Singh, even to this day, constitutes a village and contains a village community. There is within its boundaries a fairly large area of agricultural land which is assessed to land revenue, and there are also the ordinary village abadi, the ordinary village proprietary body, the ordinary village officers, a record-of-rights, etc. It may, therefore, be that Killa Gujar Singh, in part at all events, retains its former character as a village community. It may be so, but upon this point we are not called upon to give any definite opinion as we decide this case purely on its own facts. Upon these facts we are satisfied that the present land in suit does not in reality now form part of the old village of Killa Gujar Singh. During the last 17 or 18 years it has been gradually built upon, and there are now some 200 buildings standing upon it. (1) 66 P. R., 1903, P. O. It seems to us that the area in question has beer absorbed within the limits of Lahore city which has been spreading very extensively in this direction, and this extension has been particularly noticeable of recent years. While therefore it is quite possible that Killa Gujar Singh still in part retains its former character of a village, we cannot but conclude from the evidence that the area now in dispute has for some time past become part and parcel of Lahore city. In this respect the present case resembles that reported as Kishan Dial v. Ali Bakhsh (1), (cf. also Karam Ilahi v. Bahna Mal (2) ). Upon this view of the case, we must hold that no presumption arises in favour of plaintiff's claim, and that it is for him to prove that in this sub-division of Lahore city or that in Lahore city generally the custom of pre-emption does exist. This he has clearly failed to establish. A few instances have been given by him of the custom, but all these instances relate to agricultural land within the old village of Killa Gujar Singh. On the other hand, the Lists A, B and C filed by the patwaris show that there have been a very large number of sales of house property within the area in dispute and in its vicinity, and that no claims for pre-emptive rights were preferred in any single case. We must accordingly dismiss this appeal with costs. No. 91. Appeal dismissed. Before Mr. Justice Chatterji, C.I.E., and NUR MUHAMMAD,—(PLAINTIFF),—APPELLANT, Versus AIMNA AND OTHERS,-(DEFENDANTS), -RESPONDENTS. Minor-Settlement on behalf of a Muhammadan minor by his brothers- Held, that no suit can be maintained on behalf of a minor to set aside a settlement which has been made on his behalf by his brothers during his minority and had been acted upon by the other party thereto, even on the ground that under Muhammadan Law the brothers had no power to contract on behalf of their minor brother, without first restoring that party to the position which he occupied at the time the settlement was made. APPELLATE SIDE. 8th April 1907. Further appeal from the decree of Major B. O. R3, Divisional Sohan Lal and Browne, for appellant. Vishnu Singh, for respondents. The judgment of the Court was delivered by CHATTERJI, J.-The material facts are given in the judgments of the Lower Courts. The plaintiff and his brothers are the next reversioners of Buta, deceased, the original owner of the disputed land. After Buta's death, the property left by him was recorded in the names of his two widows, and on the death of Mussammat Umri, one of them, in the sole name of the other, Mussammat Aimua. In 1894 the plaintiff's brothers, on his behalf as well as for themselves, camɔ to an arrangement with Mussammat Aimua, by which she surrendered her life estate to them and to one Fauja, the sister's son of her husband, in the proportion of one-third and two-thirds, and Fauja took upon himself to pay Bata's debts amounting to Rs. 300 and to maintain Mussammat Aimna. This was recorded in the revenue papers is said to be the result of a village panchayat. Plaintiffs and heir brothers are in the enjoyment of their one-third share of land, but as the plaintiff was and still is a minor, his brother-inlaw, as his next friend, has brought the present sait for a declar ation that the widow's alienation of two-thirds of Buta's land in He repudiates favour of Fauja is bad and does not bind him. the right of his brothers to enter into the compromise with Fauja and Mussammat Aimna, but does not in his plaint offer to return the benefit he got under it, nor seek to set aside the entire alienation by the widow. and The Lower Courts have dismissed the claim on the ground that the arrangement was on the whole a beneficial one for the minor, and that his brothers acted in good faith and with authority. The plaintiff appeals through his next friend and insists that whether the arrangement is beneficial or not, his brothers had no authority under Muhammadan Law to do any such act as regards his immovable property. He refers to Rahim Bakhsh v. Ghulami (1), a casc among the Gujars of Hoshiarpur District, like the parties, in which the Muhammadan Law was followed, it being found on inquiry that there was no custom to the contrary. (1) 65 P. R., 1893. We are of opinion that there is force in the contention under Muhammadan Law, and there was no sifting inquiry into custom. But in our opinion the suit as laid ought not to be entertained. The plaintiff is a minor and seeks to repudiate the act of his brothers, who had the right to be, and who actually were, his guardians. He is unable to exercise his own independent judgment as to the merits of the compromise. He certainly cannot avoid it and retain the benefits he received under it. He must return the land he got and pay his proportionate share of Buta's debts. The offer to pay the debt and the surrender of the land are conditions precedent to his bringing the suit. As he did not do these his suit should not be allowed to proceed. His hand, moreover, ought not be allowed to be forced by an irresponsible person like his present next friend. The principle is a well known one of equity. We think, therefore, the suit should be dismissed on the above ground alone, leaving plaintiff liberty to sue if he is so advised when he attains majority and is able to judge for himself. We accordingly modify the decree of the Lower Courts by dismissing the suit on the above terms. Partics to pay their own costs in this Court. Appeal dismissed. No. 92. Before Mr. Justice Shah Din. GIRDHARI LAL,-PETITIONER, Versus BHAGO,-RESPONDENT. Civil Revision No. 2481 of 1906. aside Sale in execution of decree-Effect of sale when not set either under Section 310 A or 311-Competency of executing Court to allow time to judgment-debtor to raise amount of decree after such sale-Civil Procedure Code, 1882, Sections 805, 810A 311-Revision-Error of lawDisregard of imperative rules-Material irregularity-Punjab Courts Act, 1884, Section 70 A. Held, that where immovable property has once been sold in execution of a money decree the executing Court has no authority to allow time to the judgment-debtor to enable him to raise the amount of the decree by a private transfer of the property or otherwise as REVISION SIDE. 6th April 1907. provided by Section 35 of the Code of Civil Procedure; and, if such a sale is not set aside either under Section 310 A or 311 of the Code, the Court has no ption but to confirm the sale as provided by Section 812. Held, also, that a complete misapprehension of the powers of an executing Court and the disregard of the imperative rules of procedure resulting for instance in setting aside a sale in execution of a money decree where no objection to the sale had been raised under Section 311, is a material irre gularity within the meaning of clause (a) of Section 70 (1) of the Punjab Courts Act, 1884. Petition for revision of the order of W. A. Le Rossignol, Esquire, Turner and Rup Lal, for petitioner. Shadi Lal and Ralia Ram, for respondent. The judgment of the learned Judge was as follows: SHAH DIN, J.-After hearing the learned counsel on both sides and referring to the record, I am of opinion that the Lower Appellate Court has acted with material irregularity in the exercise of its jurisdiction in this case, and its order cannot, therefore, be allowed to stand. It appears from the file of the execution proceedings that the execution sale took place on 4th November 1905 in favour of the petitioners, and that no application was made by the judgment-debtors to have the sale set aside either under Section 310 A, Civil Procedure Code, on making the necessary deposit required to be made under that section, or under Section 311 on the ground of a material irregularity in publishing or conducting the sale. That being so, the executing Court was bound under the imperative provisions of Section 312, Civil Procedure Code, to pass an order confirming the sale after the expiry of the period of limitation prescribed for applications under the aforesaid sections of the Code, see Khetter Nath Biswas v. Faiz-ud-din Ali (1), at page 684, and Umesh Chandra Das v. Shib Narain Mandal (2), at page 1013. One of the judgmentdebtors, Mussammat Bhago, however, filed an application on the 27th of November 1905, purporting to do so under Section 305, Civil Procedure Code, asking for time to enable her to raise the amount of the decree by mortgage of the property sold by auction, and the Court granted the application without issuing notice to or obtaining the consent of the auction purchasers, and allowed the applicant time till the 5th of January 1906 to effect the mortgage and deposit the amount in Court. It is clear (1) I. L. R., XXIV Calc,, €82. (*) 1. L. R., XXXI Calc., 1011. |