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DIn Dayal Vs. Ramdhan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1915All143(1); 28Ind.Cas.306
AppellantDIn Dayal
RespondentRamdhan
Excerpt:
pre-emption suit by one co-sharer against another - custom, proof of--burden of proof--wijib-ul-arz entry, production of, whether sufficient--karibi and baidi, meanings of. - .....former stated in his evidence that he was also a relation. an entry in the wajib-ul-arz records a right of pre-emption first in the hissadar kuribi and then hissadar baidi. it appears that at one time there were a number of subdivisions of the mahal which have now ceased to exist. the court of first instance dismissed the plaintiff's suit, holding that a custom giving the plaintiff a preferential right over the defendant was not proved. the lower appellate court reversed the decrees of the court of first instance and remanded the case. the vendee comes here in appeal.2. we think that the decree of the court of first instance was correct and ought to be restored. it lay upon the plaintiff to prove not only that a custom of pre-emption existed, but that there was a custom under which he.....
Judgment:

1. This appeal arises out of a suit for pre-emption. The plaintiff and the vendee are both co-sharers and the former stated in his evidence that he was also a relation. An entry in the wajib-ul-arz records a right of pre-emption first in the hissadar kuribi and then hissadar baidi. It appears that at one time there were a number of subdivisions of the mahal which have now ceased to exist. The Court of first instance dismissed the plaintiff's suit, holding that a custom giving the plaintiff a preferential right over the defendant was not proved. The lower Appellate Court reversed the decrees of the Court of first instance and remanded the case. The vendee comes here in appeal.

2. We think that the decree of the Court of first instance was correct and ought to be restored. It lay upon the plaintiff to prove not only that a custom of pre-emption existed, but that there was a custom under which he had a right to pre-empt aa against another co-sharer. The only evidence he adduced was the extract from the wajib-ul-arz. This extract (sic) the expressions 'karibi' and 'baidi'. They are ambiguous expressions which may refer to nearness or distance in space, or nearneess or distance in relationship. The opening paragraph of the plaintiff's own plaint would seem to show that he then attributed the meaning of space' to the expressions and not that of relationship'. The written statement or the defendant shows that he also attributed this meaning to the ex press urns. In our opinion it cannot be said that the plaintiff by production of an entry, tins meaning' of which was more than doubtful, discharged the onus which lay upon him.

3. We allow the appeal, set aside the order of the Court below and restore the decree of the Court of first instance with costs in ail Courts.


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