AIR 1995 SUPREME COURT 398 ::1994 AIR SCW 4603 ::1994 (2) UJ (SC) 439 ::1994 HRR 624 ::(1994) 3 SCJ 65 ::1994 (3) SCC(Supp) 198 ::1994 (5) JT 429

Supreme Court Of India

(From : Rajasthan)*

Hon'ble Judge(s): R. M. Sahai, B. L. Hansaria , JJ

Rajasthan Pre-emption Act (1 of 1966) , S.11, S.2(viii)— Pre-emption - Right, as to - Who can claim - Transfer by khatedar tenant of agricultural holding - Co-sharer of khatedari rights not entitled to claim right of pre-emption. Pre-emption - Right, as to - Not available in transfer of tenancy.Ownership - Concept of. Rajasthan Tenancy Act (3 of 1955) , S.43— Even though a khatedar tenant is an owner for all practical purposes but his ownership is limited and, therefore the transfer by a khatedar tenant of an agricultural holding does not give right to a co-sharer to claim right of pre-emption. In such a case, it could not be said that the ownership of the State was a mere fiction. Right of pre-emption is a right of substitution in ownership either of land or house. It is not available in transfer of tenancy. A khatedar tenant is a person by whom rent is payable under Section 43 of the Tenancy Act. The effect of it in law is that such a person cannot be deemed to be an absolute or unlimited owner which is necessary before the right of pre-emption can be exercised. Heritability and transferability are no doubt of the many and may be most important ingredients of ownership. But they by themselves cannot be considered as sufficient for clothing a person with absolute ownership. Their absence may establish lack of ownership but their presence by i....