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NaraIn Das and anr. Vs. Ram Saran Das - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All419
AppellantNaraIn Das and anr.
RespondentRam Saran Das
Excerpt:
pre-emption - wajib-ul-arz--co-sharers in the khalisa mahal distinguished from owners of separate plots of muafi lands in the mahal. - - the clause in question simply provides in a business-like way for the object intended by it, namely, the arrangement of the manner in which the government revenue was to be paid by the co-sharers of the village and by the muafidars......appeal in a suit for pre-emption. the suit was brought by a share-holder in one of several resumed muafi plots situate in mauza hapar to pre-empt a sale of a portion of the same plot. the suit was resisted on the ground that no custom of pre-emption has been established in respect of the muafi, plots. that view was accepted by the court of first instance, which dismissed the suit. the district judge, however, on appeal, held that the custom was established, and remanded the suit under section 562 of the code of civil procedure. hence the present appeal. in addition to the large co-parcenary body of the village divided among themselves into five pattis, there are several plots or scraps of confiscated muafi lands, that is, lands which formerly were held revenue-free, but in modern times.....
Judgment:

Burkitt and Dillon, JJ.

1. This is an appeal in a suit for pre-emption. The suit was brought by a share-holder in one of several resumed muafi plots situate in mauza Hapar to pre-empt a sale of a portion of the same plot. The suit was resisted on the ground that no custom of pre-emption has been established in respect of the muafi, plots. That view was accepted by the Court of First Instance, which dismissed the suit. The District Judge, however, on appeal, held that the custom was established, and remanded the suit under Section 562 of the Code of Civil Procedure. Hence the present appeal. In addition to the large co-parcenary body of the village divided among themselves into five pattis, there are several plots or scraps of confiscated muafi lands, that is, lands which formerly were held revenue-free, but in modern times have been resumed and the plots included for revenue purposes in the mahal within whose area they are situated. The arrangement usual in such oases is that the revenue of the resumed muafi is paid through the lambardar of the khalisa mahal within which it is situated, but the co-sharers of the mahal and the owners of the muafi plots, whether they be called co-sharers or not, have as a rule no connection whatever with one another, and it by no means follows that the custom adopted by or existing amoc3 the members of the khalisa co-parcenary body would be applicable to the owners of the muafi plots. Strict evidence is always necessary to prove that the same custom is applicable to each. Here it is contended that the custom as to pre-emption set forth in the wajib-ul-arz oi the khalisa mahal applies to the muafi plots. In that matter we are unable to agree with the decision of the Court below. We are unable to see anywhere in the wajib-ul-arz any provision which renders its rule as to pre-emption applicable to the muafi. Some arguments were founded on the second Clause of the wajib-ul-arz in which the owners of the muafi and khalisa were spoken of as 'co-sharers.' That argument is unsound. The Clause in question simply provides in a business-like way for the object intended by it, namely, the arrangement of the manner in which the Government revenue was to be paid by the co-sharers of the village and by the muafidars. If it had been intended that the custom or the contract of pre-emption should apply to muafidars, nothing could have been easier than to add a few words to the wajib-ul-arz. Nothing of the kind has been done. We are left to formulate a custom by implication from various unconnected Clauses of the wajib-ul-arz. We cannot find any provision in the wajib-ul-arz for the existence of the custom of pre-emption in the muafi lands. The case of Kalyan Mal v. Mauan Mohan I.L.R. 17 Ali. 447, was referred to in argument. Strictly speaking that case is the converse of the case before us. It was a casein which a co-sharer in the khalisa mahal sought to pre-empt land in the muafi, and it was held that the wajib-ul-arz of the khalisa mahal did not affect the muafi. We allow this appeal. We set aside the decision of the District Judge with costs; we dismiss the plaintiff's appeal to the District Judge, and we restore the decree of the Court of First Instance.


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