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Mahraj Singh Vs. Pitambar Singh - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All344; 54Ind.Cas.768
AppellantMahraj Singh
RespondentPitambar Singh
Excerpt:
custom - pre-emption--wajib-ul-arz, entry in, of wishes of co-sharers, whether proof of custom--appeal, second--finding of fact based upon one piece of evidence alone, whether binding. - - as far as the oral evidence is concerned, it merely consists of a parrot like repetition on the one side that the custom existed and on the other side that the custom did not exist. it held that the wajib ul-arz clearly recorded a custom under 'which the plaintiff was entitled to preempt and it upheld the decision of the first court. if the decision of the court below had been based upon all the evidence on the record, we might perhaps have been bound by its finding as a finding of fact, but in the present case its decision is clearly based upon the one document alone a reference to that document will.....1. this appeal arises out of a suit for pre emption based upon village custom. the courts below have both held that the existence of the custom was established. the plaintiff produced one wajib ul-arz and he called two witnesses. the defendant called other witnesses. as far as the oral evidence is concerned, it merely consists of a parrot like repetition on the one side that the custom existed and on the other side that the custom did not exist. the defendant also attempted to show that sales to strangers had taken plica. the first court on a consideration of the evidence as a whole decided in favour of the plaintiff. the judgment of the lower appellate court shows that that court considered nothing else but the wajib ul-arz. it held that the wajib ul-arz clearly recorded a custom under.....
Judgment:

1. This appeal arises out of a suit for pre emption based upon village custom. The Courts below have both held that the existence of the custom was established. The plaintiff produced one wajib ul-arz and he called two witnesses. The defendant called other witnesses. As far as the oral evidence is concerned, it merely consists of a parrot like repetition on the one side that the custom existed and on the other side that the custom did not exist. The defendant also attempted to show that sales to strangers had taken plica. The first Court on a consideration of the evidence as a whole decided in favour of the plaintiff. The judgment of the lower Appellate Court shows that that Court considered nothing else but the wajib ul-arz. It held that the wajib ul-arz clearly recorded a custom under 'which the plaintiff was entitled to preempt and it upheld the decision of the first Court. If the decision of the Court below had been based upon all the evidence on the record, we might perhaps have been bound by its finding as a finding of fact, but in the present case its decision is clearly based upon the one document alone A reference to that document will show clearly that far from a custom being recorded by the co sharers, they were expressing their own wish as to what should happen in the future. The co-parcenary body consisted of Thakurs, one Bohra and two or three Muhammadans, and the document merely states that among Thakurs and Bohras a certain rule was observed for pre-emption and that among the Muhammadans, the Muhammadan Law of pre emption prevailed. Clearly this was no village custom binding upon the members of the co-parcenary body nor was it a .case of two customs existing side by side as the lower Appellate Court has said. We have examined the oral evidence in the case. As evidence it has no weight whatsoever. - This case is very similar to that of Second Appeal No. 1565 of 1917 decided on the 15th of February 1919 in this Court. We think that the evidence on the record is utterly insufficient to establish any custom of pre-emption in this village. We, therefore, allow the appeal and set aside the decrees of the Courts below. The suit will stand dismissed with costs in all Courts, including in this Court fees on the higher scale.


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