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Thakur Atraj Singh Vs. Mooloo Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All350; 54Ind.Cas.875
AppellantThakur Atraj Singh
RespondentMooloo Singh and ors.
Excerpt:
custom - pre-emption--proof of custom--wajib-ul-arz, entries in, value of--previous sales to co-sharers, effect of. - - that document distinctly in section 8 refers to the oustoms set out in the settlement wajib-ul-arz and reiterates the fact that they prevail and are binding on the co-sharers. in the two wajib-ul arzes drawn up at a considerable distance of time apart the custom of preemption has been clearly and distinctly mentioned and all the co-sharers agree that it is in force and binding on them......ul-arzes and certain oral evidence on both sides, and the fast that there had been at least ten sales in favour of the plaintiff in the same mahal. the lower appellate court in respect of the oral evidenae has in dear language said that it is worthless and that no reliance can be placed upon it. this refers to the oral evidence on both sides. it decided the point simply on its interpretation of the documentary evidence and the inference to be drawn from the fact that all the sales in this mahal had been made in favour of the plaintiff. it held that the sales in favour of the plaintiff proved nothing at all and that the two wajib-ul-arzes were insufficient to establish the custom. the first wajib ul-arz is that of the settlement of 1868 or 1869. in section of that doou-ment there is a.....
Judgment:

1. This is a plaintiff's appeal arising out of a suit for pre-emption. The Courts below dismissed the plaintiff's suit on the ground that the evidenae produced was insufficient to prove the custom alleged. The evidence consisted of the production of two wajib ul-arzes and certain oral evidence on both sides, and the fast that there had been at least ten sales in favour of the plaintiff in the same Mahal. The lower Appellate Court in respect of the oral evidenae has in dear language said that it is worthless and that no reliance can be placed upon it. This refers to the oral evidence on both sides. It decided the point simply on its interpretation of the documentary evidence and the inference to be drawn from the fact that all the sales in this Mahal had been made in favour of the plaintiff. It held that the sales in favour of the plaintiff proved nothing at all and that the two wajib-ul-arzes were insufficient to establish the custom. The first wajib ul-arz is that of the settlement of 1868 or 1869. In section of that doou-ment there is a distinct mention of the existence of a custom of pre-emption. The words used are wa riwaj haqq shufa :' the document relates that at that time no co sharer's property was under a mortgage and that in future every one had a right to transfer his property with certain conditions. The next wajib-ul-arz is that of 1895 drawn up when a partition was carried out in the village. That document distinctly in Section 8 refers to the oustoms set out in the settlement wajib-ul-arz and reiterates the fact that they prevail and are binding on the co-sharers. In the two wajib-ul arzes drawn up at a considerable distance of time apart the custom of preemption has been clearly and distinctly mentioned and all the co-sharers agree that it is in force and binding on them. Read in the light of the above, the fact that all the sales in this Mahal have baen in favour of a co-sharer, namely, the plaintiff, is a fact which has considerable significance in favour of the contention that the custom of pre-emption itself existed. If these sales had all been to strangers, an inferenoe of the opposite sort would naturally have been drawn. In our opinion the only inference that can properly be drawn from the above evidence is that the rule of pre eruption itself existed as a custom and that the plaintiff under that right, being a co-sharer entitled under the custom to preempt, had a right to pre-empt the property in suit against the defendant vendee who is not a co-sharer in the Mahal. It is true that the vendor, the vendee and the pre,emptor are all desoendedfrom a common ancestor, but the vendee is not a co-sharer in the Mahal, the pre emptor is, and the custom gives a right to the relation who is a co-sharer. The Court below has found on the question of consideration that the true sale price was Rs. 1,000 and that point is not opntested before us. The result, therefore, is that we allow the appaal. The plaintiff's suit will stand decreed with costs in all Courts conditional on his paying into Court the sum of Rs. 1,000 within a period of three months from today's date. If he fails to pay the Rs, 1,000 into Court as direoted above, then his suit will stand dismissed with costs in all Court. Costs in this Court will include fees on the higher scale.


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