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Chhatradhari Ahir and ors. Vs. Uttam Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1948All303
AppellantChhatradhari Ahir and ors.
RespondentUttam Chand and ors.
Excerpt:
.....give and for fresh finding and decision in the light of the above remarks. 9. i am, therefore, clearly of the opinion that the plaintiff has failed to prove that there is a custom of pre-emption in village nasirpur. 11. i agree, and would like to add a few words......4(12) of the act, the contention of the learned counsel is that this 'kafiyat-hal' is a record of village rights or custom prepared in connection with the settlement of 1860, and, as such, it deserves to be considered as of equal value with that of the wajib-ularz prepared in that year. learned counsel for the respondent has further contended that on a proper interpretation of the wajib-ul-arz of 1860 it will be found that a right of pre-emption has been recognised, but that as there has been no more than a single proprietor of the village there was no occasion for the exercise of such a right he has, therefore, contended that the two documents are not necessarily inconsistent rather they supplement each other - and, therefore, they should be read together. he has invited our attention.....
Judgment:

Wali Ullah, J.

1. This is an appeal, by the defendants against an order of the learned Additional Civil Judge in appeal by which he remanded the case to the Court of first instance for fresh hearing and decision according to law and according to the directions given by him.

2. The relevant facts necessary for the disposal of this appeal are these. The plaintiff respondent filed a suit for pre-emption in respect of a sale deed dated 26th July 1913, for a share in village Nasirpur. The suit was contested, inter alia, on the ground that there was no custom of pre-emption in the village in question. The Court of first instance took up this issue, which was issue 10 in the suit, as the first issue in the case. In proof of the existence of a custom of pre-emption the plaintiff relied on a document characterised as 'kafiyat-hal' (EX. 1), which appears to have been prepared during the settlement operations in the year 1860 A.D. On behalf of the defendants, however, reliance was placed on the entries of the wajib-ul-arz of the village of 1860, which is Ex. A.3. Along with this defendants also filed an extract from the wajib-ul-arz of 1833 A.D., Ex. A 2. On a consideration of these pieces of evidence, particularly in the light of Section 5 of the Agra Pre-emption Act, the learned Munsif came to the conclusion that no right or custom of pre-emption in the village was established. In view of this finding the suit was dismissed with costs.

3. On appeal, the learned Additional Civil Judge, first of all, recorded his opinion that the entries in the wajib-ul-arz of 1860 clearly recognised the existence of a custom of pre-emption in the village. In the second place, the learned Judge treated the 'kafiyat-hal' (EX. 1) as a 'robkar' prepared at the time of the settlement, and, on a consideration of the entries of the so-called robkar, he came to the conclusion that a custom of pre-emption prevailed in the locality in which this village was situate. Apparently the learned Judge Was not satisfied with this finding of his, and he allowed the plaintiff appellant to adduce some further documents as additional evidence of the fact that the custom of pre-emption prevailed in the villages surrounding village Nasirpur. Finally the learned Judge expressed himself thus;

In order therefore to determine it (custom of pre-emption) exactly it would be necessary to look into wajib-ul-arz of surrounding villages.

Then he remanded the case to the Court of first instance

for determining the exact custom of pre-emptiou in the surrounding villages after taking such further oral and documentary evidence as parties might like to give and for fresh finding and decision in the light of the above remarks.

4. Learned Counsel for the appellants has strongly contended, in the first place, that there, was absolutely no justification for the lower appellate Court for admitting additional evidence at the appellate stage. His contention is that conditions prescribed by order by Rule 27, Civil P.C., were in no way complied with and that there was no warrant in law for the Court below to allow additional evidence of the character as was the case here. The learned Judge nowhere gives any reasons worth the name which would justify admission of additional evidence at the appellate stage. We have looked into the record of the case to see if there was even a proper application supported by a proper affidavit praying for the admission of additional evidence. There is undoubtedly an application, but there is no affidavit in support of it, nor does the application indicate any reason which might conceivably justify an appellate Court in allowing additional evidence at that stage. I am, therefore, quite clear that the order of the lower appellate Court allowing additional evidence to to be taken, even though it was on payment of Rs. 8 as damages, was entirly erroneous.

5. The next question, which was the only substantial point involved in the appeal, was whether or not the extracts of the wajib-ul-arzes of 1833 and 1860 (Exs. A 2 and A 3), taken along with the document mentioned above and described as' 'kayfit-hal' and marked as Ex. 1, established that there was a right or custom of pre-emption in village Nasirpur. The entries of both the wajib-ul-arzes of the years 1833 and 1860 go to show that the entire village was owned by a single proprietor who was in sole possession of it. The entries in each case further go to show that, in the circumstances, therefore, there; was no occasion for a custom of pre-emption to grow up. To my mind, therefore, it is clear that neither of the two wajib-ul-arzes lend any support to the contention of the plaintiff that a custom or right of pre-emption exists in village Nasirpur.

6. Then we come to the 'kafiyat-hal,' designated as a 'robkar' by the lower appellate Court. This document purports to be prepared in accordance with the statement of one Shiv Charan lal Patwari recorded by Sital Prasad Qanungo. It also purports to bear the seal of the Court. This document, under one of its sub-headings, no doubt contains an entry in favour of the existence of a right or custom of pre-emption. The question, however, is about the value which should be attached to the entries contained in this document. Learned Counsel for the appellants has strenuously contended that this document should have no more value than that which has to be attached to the statement of the Patwari of the village made during the settlement proceedings. His contention is that this document should not, in any case, be considered to have a status analogous to that occupied by a wajib-ul-arz prepared at the time of the settlement in regard to the customs prevalent in a particular village

7. On the other Hand, learned Counsel for the respondent has invited our attention to the language used in Section 5, Agra Pre-emption Act, and in that connection to the definition of the term 'wajib-ul-arz' given in Section 4(12) of the Act, The contention of the learned Counsel is that this 'kafiyat-hal' is a record of village rights or custom prepared in connection with the settlement of 1860, and, as such, it deserves to be considered as of equal value with that of the wajib-ularz prepared in that year. Learned Counsel for the respondent has further contended that on a proper interpretation of the wajib-ul-arz of 1860 it will be found that a right of pre-emption has been recognised, but that as there has been no more than a single proprietor of the village there was no occasion for the exercise of such a right He has, therefore, contended that the two documents are not necessarily inconsistent rather they supplement each other - and, therefore, they should be read together. He has invited our attention to the case in Kishun Ahir v. Saran Ahir : AIR1925All553 . The facts of that case, however, were very different from those of the present case. In that case the 'robkar' purported to be merely an addendum to the principal document, namely the wajib-ul-arz prepared in the same year, i.e. 1874, and in terms it said that the entry relating to custom in the wajib-ul-arz was to be deemed to be incorrect. Under those circumstances, it was held that the wajib-ul-arz could not be considered as a document detached from the robkar in question.

8. In the present ease the document cha. racterized as 'kafiyat-hal' (Ex. 1), on a close examination, appears to be nothing more than the statement of the Patwari recorded by the Qanungo during settlement proceedings. It may be that when finally the wajib-ul-arz came to be prepared the statement of the Patwari was not accepted as correct, but the statement of the sole proprietor and lambardar was preferred by the settlement officer and the entries to be found in the wajib-ul-arz with regard to the right of pre-emption came to be made. Again, it seems to me very difficult to hold that the settlement authorities concerned would prepare two such contradictory records about the existence of the custom of pre-emption in one and the same village. It appears to me, therefore, that the document described as 'kafiyat-hal' {EX. 1), should not receive greater importance than that which should be attached to a mere statement of the Patwari recorded during the course of settlement operations. That being so, in order to determine whether or not a custom of pre-emption exists in the village Nasirpur, we have to look to the two extracts from the wajib-ul-arzes of 1833 and 1860 as mentioned above.

None of these two wajib-ul-arzes lends any support to the contention that the custom of pre-emption prevails in this village. Explanation attached to Section 5, Sub-clause (2) further makes it clear that the existence of any record contradictory to the entry contained in the wajib-ul-arz is immaterial.

9. I am, therefore, clearly of the opinion that the plaintiff has failed to prove that there is a custom of pre-emption in village Nasirpur. In view of this finding, the appeal must be allowed, the order of remand passed by the Court below should be set aside and the decree passed by the Court of first instance dismissing the suit be restored.

10. I would accordingly, allow the appeal, set aside the order passed by the Court below and restore the decree passed by the Court of first instance with costs throughout.

Bind Basni Prasad, J.

11. I agree, and would like to add a few words.

12. The first error which the lower appellate Court committed was to accept additional evidence while hearing the appeal. We have on record the application with which these additional documents were produced. The only reason assigned in it is that these additional documents would elucidate matters. Order 41, Rule 27, Civil P.C., as amended by this Court specifies only three grounds on which additional evidence can be accepted in appeal. No such ground is given in the application dated 28th June 1946, which was made by the plaintiff before the lower appellate Court. It is important to mention here that in the plaint the right of pre-emption was claimed on the basis of custom as prevalent in the village of Nasirpur. It was never claimed that the right is available to the plaintiff by reason of the prevalence of the custom in the surrounding villages. As the judgment of the trial Court will show, the point was not even argued before it. By producing these documents the plaintiff sought to make out an additional ground of fact to his case.

13. Nor is it possible for me to agree with the contention that the documentary evidence on the record establishes that a right of preemption does exist in this village. It is to Section 5, and that section alone of the Agra Pre-emption Act, 1922, that we should refer to see as to whether or not a right of pre-emption exists. Ac, cording to that section:

a right of pre-emption shall be deemed to exist only in Mahals or villages in respect of which any wajib-ul-arz prepared prior to the commencement of that Act records a custom, contract or declaration-

(a) recognizing, conferring or declaring a right of pre-emption, expressly or by necessary implication, whatever its extent and in whatever form it may be, expressed, or

(b) imposing on a co-sharer desiring to transfer his interest in land with an obligation to offer it in the first instance to another co-sharer or to a relative.

14. The wajib-ul-arz of 1833 contains the following entry:

In this village I am the sole owner and in possession. There is no other co-sharer so that it may be necessary for me to mention about the transfer of proprietary rights in the village.

15. The wajib-ul-arz of 1860 provides as follows:

In this village there is only one lambardar and proprietor. I have the power to transfer my rights by way of sale or mortgage because besides me there is no other co-sharer. Hence there is no occasion for a right of pre-emption to arise.

16. The trial Court interpreted the above two entries as laying down no right of preemption, but the lower appellate Court held otherwise. Learned Counsel for the respondents supports the construction placed by the lower appellate Court. I am unable to agree with this. By no stretch of imagination can it be held that the above two entries in the wajib-ul.arzes of 1833 and 1860 recognise the practice or custom of pre-emption. From 1833 onwards, the village was owned by a sole proprietor, hence there was hardly any occasion for a custom of pre-emption to grow up. We do not know how long before 1833 the village was owned by a sole proprietor. It is argued on behalf of the respondents that probably prior to 1833 the village was owned by several co-sharers and at that time there was a custom of preemption. It is further urged that when the village came to be owned by a sole. proprietor then the custom fell into disuse and Bo it was not recorded in the wajib-ul-arzes of 1888 and 1860. Had it been so, I would have expected an explicit entry in these two wajib-ul-arzes to the effect that there was in existence a custom of pre-emption and that it has fallen into disuse by reason of the fact that the village had come to be owned by a single proprietor, My interpretation of these entries is that there has never been any custom of pre-emption in the village of Nasirpur.

17. Reliance is then placed upon the document known as kafiyat-haqe-hal based upon the statement of the Patwari which was prepared in the course of the settlement of 1860. It is not a document which has been given the name of wajib-ul-arz. Learned Counsel for the respondents relies upon the definition of the term 'wajib-ul-arz' as contained in Sub-section (12) of Section 4, Agra Preemption Act, 1922:

Wajib-ul-arz includes any record of village rights or custom prepared, under any law or rule for the time, being in force, at or in connection with a settlement, revision of records or partition.

He contends that inasmuch as this kafiyat-haqe-hal is a record which was prepared in the course of the settlement it should be given the character of a wajib-ul-Sirz according to the above definition. I am unable to agree with this. The definition means that only that document will be treated as a wajib-ul-arz which is a record of a determined right or custom prepared in the course of settlement or revision of records or partition. If, in the process of the determination of a custom, a Settlement Officer takes the evidence of various persons then every statement recorded by him cannot be treated as a record of village rights or custom and as a 'wajib-ul-arz' as defined in Sub-section (12) of Section 4 of Agra Pre-emption Act. It is clear that in the present case the document Ex. 1, described as the hafiyat-haqe-hal, is one of the materials which the Settlement Officer had collected for determining the village rights and custom. Obviously, the Patwari was an important source for information on these points. The various questions regarding the village rights and customs were set down in writing and the answers of the Patwari in regard to them were taken down by the Qanungo and the same were then submitted to the Settlement Officer. On the particular point as to the right of pre-emption, it is clear that the Settlement Officer did not accept the Patwari's statement Had he accepted that statement, he would have incorporated it in the formal document of wajib-ul-arz which he subsequently prepared. From a perusal of the wajib-ul-arz, it appears that he preferred the statement of the sole proprietor on the question of the right of pre-emption, and evidently he was right in this because there could be no question of preemption in a village which was owned by a sole proprietor. The document Ex. 1, kafiat haqe-hal, in this case is therefore nothing more than evidence which had been recorded in the course of the settlement operations for the purpose of determining the village rights and customs, and it does not fall within the definition of 'wajib-ul-arz' as contained in sub-section (12) of Section 4, Agra Pre-emption Act.

18. The lower appellate Court has remarked in its judgment as follows:

It has been held by our High Court in several rulings that where it is merely recorded that there is a custom of pre-emption in surrounding villages it amounts to a recognition of the right of pre-emption in that village too.

No ruling in support of the above remark has been cited on behalf of the respondents.

19. The ruling to which we have been referred to is Syam Lal v. Dwarka Prasad : AIR1927All277 . It is distinguishable from the facts of the present case.

20. On the other hand, there are rulings which lean in the opposite direction, and in this connection I may refer to the case in Mohan Singh v. Shiv Charan Singh : AIR1940All422 . In that case the plaintiff relied on a wajib-ul-arz which purported to be a consolidated wajib-ul-arz with respect to all the villages in a particular pargana 4 which was included also the village wherein the property sold was situated. But in that particular village there was no mention of any right of pre-emption. It was held that the wajib-ul-arz of the pargana was not such a wajib-ul-arz as was contemplated by Section 5 of the Agra Pre-emption Act, and that the record of the custom of pre-emption contained therein could not be made the basis of a finding that a custom of pre-emption prevailed in the village in which the property sold was situated.

21. I therefore agree in the order proposed by my learned brother.

22. We allow the appeal, set aside the order of remand passed by the lower appellate Court and restore the decree passed by the Court of first instance with costs throughout.


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