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Mawasi Vs. Mulchand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in14Ind.Cas.278
AppellantMawasi
RespondentMulchand and ors.
Excerpt:
pre-emption - owner of isolated plot--right to preempt--wajib-ul-arz--evidence--custom. - .....biswas share set forth in the khewat. the only evidence adduced by the plaintiff in support of the existence of a custom of preemption is the wajib-ul-arz. the wajib-ul-arz for mahal chidu is as follows: 'in this mahal if the owner of a share wish to sell it, he shall do so first to his near relation who may be a co sharer in the zemindari and in case of his refusal to any one he likes.' the wajib-ul-arz for mahal roti ram is in similar terms. now, the custom which the plaintiff attempts to set up is a custom giving a right of preemption to a person who is only a co-sharer in the very limited sense which we have already stated, namely, he merely holds two revenue-free plots entered in the same khewat as the property which is sold is situated. the probability of such a custom existing is.....
Judgment:

1. This appeal arises out of a suit for pre-emption. The plaintiff is the owner of two small plots of land which are not assessed for Government Revenue. The plots held by the plaintiff appear in the same khewat as the land which goes to make up a 20 biswas mahal. To this extent and no further can it be said that the plaintiff is a proprietor in the mahal in which the property sold is situate. The 2 bighas, 3 biswas and 7 biswansis do not go to make up the 20 biswas share set forth in the khewat. The only evidence adduced by the plaintiff in support of the existence of a custom of preemption is the Wajib-ul-arz. The Wajib-ul-arz for mahal Chidu is as follows: 'In this mahal if the owner of a share wish to sell it, he shall do so first to his near relation who may be a co sharer in the zemindari and in case of his refusal to any one he likes.' The Wajib-ul-arz for mahal Roti Ram is in similar terms. Now, the custom which the plaintiff attempts to set up is a custom giving a right of preemption to a person who is only a co-sharer in the very limited sense which we have already stated, namely, he merely holds two revenue-free plots entered in the same khewat as the property which is sold is situated. The probability of such a custom existing is very slight. In the Full Bench case of Dalganjan Singh v. Kalka Singh 22 A. 1 the learned Chief Justice said: 'The most essential feature of the coparcenary body is the joint and several responsibility of the co-sharers for the payment of the Government Revenue assessed on the mahal, coupled in cases of zemindari tenure with the holding and management of the whole of the lands of the mahal by all the co-sharers in common. It is for the mahal, for the local area held under a separate engagement for the payment of the land revenue, not for a village or other local area not being a mahal, that the Settlement Officer frames the Wajib-ul-arz. It is meant as a record of the contracts or the customs of the co-sharers o the mahal. This being its object, it is prima facie unlikely to include any contract or custom which is absolutely independent of the continuance of the mahal as a focal and proprietary unit or of the ca-parcenary body for which it is framed'. It seems to us that, in considering the question of the existence or non-existence of a custom of pre-emption, the principle involved in the foregoing remarks fully applies to the present case. The plaintiff is in no way liable for the payment of Government Revenue in conjunction with the vendor, He has no right to have any voice in the management of the mahal in which the vendor's property is situate. In all probability he would not be consulted or have any right to be heard when the Wajib-ul-arz was being framed. It is, in all probability, a mere accident that the plots of land which he holds came to be put into the khewat in which they are found. There is, in short, no community of interest. These are all matters which the Court, in considering the question of the existence or nonexistence of a custom of pre-emption, is entitled and bound to take in to consideration. The Wajib-ul-arz is not the custom. It is merely a piece of evidence to be given due consideration to in the course of the inquiry. The question is whether by production of the Wajib-ul-arz in question without the support of a single instance in which the right has been claimed or exercised, the plaintiff has discharged the onus of proving the existence of a custom of pre-emption giving him as a proprieter of an isolated plot a right to pre-empt. In our opinion the evidence falls altogether short of anything of the kind and the decision of the Court below was quite correct. We accordingly dismiss the appeal with costs including in this Court fees on the higher scale.


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