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Babu Radha Kishun Vs. Musammat Abbasi Begam - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in64Ind.Cas.480
AppellantBabu Radha Kishun
RespondentMusammat Abbasi Begam
Excerpt:
pre-emption - muafi plots--wajib-ul-arz, recording custom as to share in mahal--custom, if applicable to muafi plots. - - as against the names of these proprietors no fractional share is entered, but the areas of their plots are separately recorded as well as the revenues assessed on them. the plaintiff has entirely failed to prove that there is a custom under which a co-owner in a muafi plot has a right to pre-empt a share sold......is a defendant's appeal arising out of a suit for pre-emption. the property sold is a part of a resumed muafi plot. the plaintiff is a co-sharer in the plot. the court of first instance originally dismissed the suit. on appeal the suit has been decreed by the lower appellate court. the defendant has come up in appeal to this court and on his behalf it is contended that in the first place, no custom of pre-emption has been proved at all; and in the next place, even if a custom of pre-emption exists, it does not apply to owners of resumed muafi plots. the wajib-ul-arz, which is the sole evidence in this case, consists of several chapters, chapter ii deals with the rights of co-sharers and in paragraph 14 of that chapter there is a long clause dealing with the rights of preemption in.....
Judgment:

1. This is a defendant's appeal arising out of a suit for pre-emption. The property sold is a part of a resumed muafi plot. The plaintiff is a co-sharer in the plot. The Court of first instance originally dismissed the suit. On appeal the suit has been decreed by the lower Appellate Court. The defendant has come up in appeal to this Court and on his behalf it is contended that in the first place, no custom of pre-emption has been proved at all; and in the next place, even if a custom of pre-emption exists, it does not apply to owners of resumed muafi plots. The wajib-ul-arz, which is the sole evidence in this case, consists of several chapters, Chapter II deals with the rights of co-sharers and in paragraph 14 of that chapter there is a long clause dealing with the rights of preemption in case a 'hissedar' transfers his property. Then comes Chapter III, which deals with the rights of owners of resumed and unresumed muafi plots. In paragraph 2 of this chapter, which refers to muafidars of resumed muafis, it is stated that all these muafidars have settlement with the Government of their own muafi and the Zamindars of the village have no concern with them. In Chapter III which deals with the rights of these muafidars. there is no clause which records any custom of preemption among them. A reference to the khewat which was produced in this case makes it quite clear that the constitution of the village is as follows: There are about six groups of co-sharers who own between them a 20-biswas share in this village which completes the entire mahal. After them we have a list of owners of muafi lands and then a list of owners of resumed muafi lands. As against the names of these proprietors no fractional share is entered, but the areas of their plots are separately recorded as well as the revenues assessed on them. A perusal of this document makes it quite clear that the owners of these muafi plots are not co-sharers in the 20 biswas share of the mahal. The property sold by the vendor, therefore, cannot be called a share' which has been sold. The clause of the wajib ul arz, assuming that it records a custom of pre-emption, does not, therefore, apply to the present case. The plaintiff has entirely failed to prove that there is a custom under which a co-owner in a muafi plot has a right to pre-empt a share sold. The evidence on which he relies does not prove it. We may note that in a previous case (First Appeal from Order No. 114 of 1919 decided by this Court on the 1st of July 1920) arising out of a suit for pre-emption in which practically the same question was raised, this Court held that there was no custom as regards muafidars. That suit also was between the same parties. In our opinion the decree of the lower Appellate Court was not correct. We accordingly allow the appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance. The plaintiff's suit shall stand dismissed with costs in all Courts.


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