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Jagat NaraIn Dube Vs. Nageshwar Prasad Tiwari and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1925All663
AppellantJagat NaraIn Dube
RespondentNageshwar Prasad Tiwari and ors.
Excerpt:
- .....of the patti who was related to the vendor, and that the right of the co-sharers of the other pattis related to the vendor would be postponed to a co-sharer in the patti though not related. the result of that decision, which is final between the parties to the present appeal, is that the plaintiff jagat narayan dube, who is a co-sharer in the same patti, is entitled to preference over the defendants vendee who though a blood relation, is not entitled to preference over him because he is a co-sharer in another patti. the other points arising, in the suit have not been dealt with by the courts below. the appeal is therefore, allowed and the case is remanded to the court of first instance through the lower appellate court for disposal after the determination of the other points raised.....
Judgment:

Lindsay, J.

1. This appeal arises out of a suit for pre-emption brought in respect of certain property situated in the village Ajgara. The plaintiff is a co-sharer in the patti in which the share sold is situated. The defendant vendee is a co-sharer in another patti, but claims to be related by blood to the vendor. The Court of first instance found that no custom of pre-emption was established and did not proceed to try the other issues raised in the case. The lower Appellate Court, however, contented itself by holding that even if there was a custom of pre-emption, the plaintiff was not entitled to preference because the defendant vendee was related to the vendor and was consequently entitled to preference.

2. The wajib-ul-arz of the village Ajgara, prepared in 1820, allows a right of preemption in the first instance to the co-sharers of the village. The wajib-ul-arz prepared in 1862 is more specific. It gives a right of pre-emption to near co-sharers (hissedar qaribi) and in case of their refusal to the co-sharers of the village. The wajib-ul-arz prepared in 1890 describes more fully how the right of preemption between the near co-sharers (hissedar qaribi) was to be regulated. It lays down thai the right of pre-emption shall belong in the first instance to a co-sharer who was a near relation sharik aziz qaribi after him to a co-sharer who was a more distant relation (sharik baeed), and after the latter to a co-sharer in the patti, and in case of his refusal, to the co-sharers of other patttis. In the connected First Appeal No. 24 of 1921, decided to-day, we have held that these entries afford evidence of the existence of a custom of pre-emption in that village, and the only question left for consideration in this case, therefore, is whether under that custom the plaintiff Jagat Narayan Dube is entitled to preference as against the defendant vendee Nagesher Prasad Tiwari. It appears from the record of F.A. No. 328 of 1921 which has been decided to-day, that this wajib-ul-arz has been the subject of interpretation in previous suits, to one of which both Nageshar Prasad Tiwari and Jagat Narayan Dube were parties. They were rival preemptors, and the finding of the Court which decided that suit was that the only person who could claim, in the first instance, a right of pre-emption as against the others was a co-sharer of the patti who was related to the vendor, and that the right of the co-sharers of the other pattis related to the vendor would be postponed to a co-sharer in the patti though not related. The result of that decision, which is final between the parties to the present appeal, is that the plaintiff Jagat Narayan Dube, who is a co-sharer in the same patti, is entitled to preference over the defendants vendee who though a blood relation, is not entitled to preference over him because he is a co-sharer in another patti. The other points arising, in the suit have not been dealt with by the Courts below. The appeal is therefore, allowed and the case is remanded to the Court of first instance through the lower appellate Court for disposal after the determination of the other points raised in the suit in the manner prescribed by law. Costs here and hitherto will abide the result.


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