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Sayed Gulzar Ali Vs. Syed Siadat HusaIn and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All373; 43Ind.Cas.2
AppellantSayed Gulzar Ali
RespondentSyed Siadat HusaIn and ors.
Excerpt:
pre-emption wajib-ul-arz, entry in, construction of. - .....suit. both parties admitted that the custom of pre-emption prevailed. both parties relied upon the entry in the wajib-ul-arz as setting forth what that custom was. if the wajib-ul-arz was as interpreted by the; lower appellate court, the judgment of that court would have been quite correct. it has, however, omitted to appreciate that, the entry in the wajib-ul-arz expressly states that the offer is to be made to the relations in their order of relationship. this being so, we think that the decision of the lower appellate court on this preliminary point was not correct. we allow the appeal, set aside the decree of the lower appellate court and remand the case to that court with directions to re-admit the appeal upon its original number in the file and proceed to hear and determine the.....
Judgment:

1. This appeal arises out of a suit for pre-emption. Both the pre-emptor and the vendee are relatives of the, vendor but according to the finding of the lower Appellate Court, the pre-emptor is one degree nearer than the vendee. The Court of First Instance decreed the plaintiff's claim. The Lower Appellate Court reversed the decree and dismissed the suit. Both parties admitted that the custom of pre-emption prevailed. Both parties relied upon the entry in the wajib-ul-arz as setting forth what that custom was. If the wajib-ul-arz was as interpreted by the; Lower Appellate Court, the judgment of that Court would have been quite correct. It has, however, omitted to appreciate that, the entry in the wajib-ul-arz expressly states that the offer is to be made to the relations in their order of relationship. This being so, we think that the decision of the lower Appellate Court on this preliminary point was not correct. We allow the appeal, set aside the decree of the lower Appellate Court and remand the case to that Court with directions to re-admit the appeal upon its original number in the file and proceed to hear and determine the same according to law. Costs here and heretofore will be costs in the cause.


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