1. The sole question for determination in this appeal is whether the lower Appellate Court was right in holding that the custom of pre-emption alleged by the plaintiff was established.
2. The two pieces of evidence which were relied upon for the purpose of establishing custom were the wajib-ul-arz of 1860 and the zamima khewat of 1885. The case is from the Gorakhpur District. We may also notice that the kafiat serishta nizamat was also in evidence for the purpose of showing the history of the village.
3. It is important to notice in connection with the zamima khewat of 1885 that the document is of peculiar weight having regard to the circumstances in which this record was framed at the time of the Settlement of Gorakhpur in or about the year 1885. We have it stated at page 210 of Mr. Agarwala's Commentary on the Land Revenue Act, 5th Edition, (page 210), that in the month of August 1886 certain directions were issued to the Settlement Officer of Gorakhpur with regard to the preparation of the record which had hitherto been known as the wajib-ul-arz.
4. The Settlement Officers were directed to pre-emption. The instructions laid down that a custom of pre emption should be recorded when the proprietors expressly demand that it be noted and it is proved conclusively that the custom exists. This direction was given with regard to mahals belonging to other than Muhammadan proprietors.
5. It is clear, therefore, that in dealing with the question of the existence of the custom in this case we are entitled to lay particular stress upon the zamima khewat of 1885 for we must assume that it was prepared in the manner directed by the Board of Revenue, that is to say, it must be taken that the proprietors must be other than Muhammadans and expressly desired to have the custom of pre-emption recorded, and must have adduced proof before the Settlement Officer, conclusive, to show that the custom existed.
6. The wajib-ul-arz of 1860 also shows that a custom is recorded.
7. It was argued in the Court below that the existence of the custom had not been established in view of the early history of the village as deduced from the kaifiyat serishta nizamat.
8. From that document it appeared that the first Settlement of this village was made in the year 1245 Fasli corresponding roughly to 1838. That Settlement must have been the first Regular Settlement made under the Regulation of 1833.
9. It is also shown from the kaifiat that up to the year 1220, Fasli, corresponding to 1813 A.D. there was no zemindar or mustajir recorded as being in possession.
10. It is not, however, to be assumed from these facts that there were no owners of this village prior to the year 1833 when the Settlement was made. It is quite possible that for a long period the Government may have refused Settlement to the zemindars or have refused to farm the property out to the owners for various reasons. The Judge was we think, right in saying that this part of the evidence would not be sufficient to overturn the presumption attaching to the wajib-ul-an of 1860 and attaching still more strongly to the zamima khewat of 1885.
11. The other attempt which was made in order to show that the record was not one of custom was in the direction of showing that being so, neither of them could properly be regarded as a record of custom.
12. We find in the wajib-ul-arz of 1860 that the pre-emptors are divided into three categories:
(2) digar hissedar thok, and
(3) dusre thok ke hissedar.
13. In the zamima khewat of 1885 we find four categories:
(1) rishtedar karib,
(2) rishtedar baeed,
(3) shurkai baeed, and
(4) shurkai tahte nambardari.
14. Mr. Iqbal Ahmad has argued that two completely new categories are introduced in this later record, namely, those of near and distant relations, (categories 1 and 2) and, according to his argument, the record now means that a relation without being a co-sharer is entitled to pre-emption.
15. At first sight this argument seems to be a plausible one, but, on the other hand, we think Mr. Upadhia is probably right in contending that the second record is nothing more than an amplification of the earlier record, the reason being, that more particular enquiries were made during the Settlement of 1885-86 which led to the disclosure that preference in the matter of pre-emption was given in the first instance with reference to nearness of degree in relationship. And we are also inclined to believe that the word 'rishtedar' in the record of 1885 really means a person who is at the same time a sharer and a relation. We arrive at this conclusion having regard to the whole context because we find in the four categories mentioned in the second record that the 3rd and 4th consist of persons who are co sharers in the patti and then persons who are co-sharers in same nambardari. The third and fourth categories correspond, in our opinion, to the second and third categories of the earlier wajib- ul-arz and it is reasonable to assume, therefore, that the first and second categories in the second record are really a sub-division of the first category in the earlier record. At any rate, this is a possible interpretation, and we are not prepared to say that the decision arrived at by the learned Judge is erroneous
16. No other question arises for disposal.
17. The appeal fails and we dismiss it with costs including in this Court fees on the higher scale.