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Shamsher Singh and anr. Vs. Pyare Lal and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All88; 64Ind.Cas.956
AppellantShamsher Singh and anr.
RespondentPyare Lal and anr.
Excerpt:
appeal, second - finding--misinterpretation of document. - - in our opinion the finding of the lower appellate court was clearly wrong......trial court held that no custom of pre-emption was proved and dismissed the suit. in appeal the learned district judge has held that the copy of the wajib-ul-arz of 1872 produced is sufficient prima facie evidence of the existence of a custom of pre-emption. he has passed an order of remand because there remained other issues to be tried out. in our opinion the quotation given by the learned district judge from the wajib-ul-arz in question is decisive against his view. the document as it stands is a clear record of an agreement come to by the co-sharers at the time of the settlement, the reason why there should have been such an agreement is explained by the learned district judge himself in a later part of the judgment. two villages were being joined and hence the co-sharers recorded.....
Judgment:

1. This is an appeal by the defendants in a pre-emption suit against an order of remand. The Trial Court held that no custom of pre-emption was proved and dismissed the suit. In appeal the learned District Judge has held that the copy of the wajib-ul-arz of 1872 produced is sufficient prima facie evidence of the existence of a custom of pre-emption. He has passed an order of remand because there remained other issues to be tried out. In our opinion the quotation given by the learned District Judge from the wajib-ul-arz in question is decisive against his view. The document as it stands is a clear record of an agreement come to by the co-sharers at the time of the Settlement, The reason why there should have been such an agreement is explained by the learned District Judge himself in a later part of the judgment. Two villages were being joined and hence the co-sharers recorded their agreement that such and such rules as to pre-emption should hereafter prevail in the joint village. There were other pieces of evidence also tending to controvert the existence of the custom set up by the plaintiffs, one of them a decision in a suit in which it had been held, on the plea of the plaintiff Pyare Lal himself, that there was no custom of pre-emption in this village. In our opinion the finding of the lower Appellate Court was clearly wrong. It has been pressed upon us that the finding is one of fact and should not be interfered with. In spite of an expression somewhat loosely used in a contrary sense in one decision of this Court, to which our attention has been called, we see no reason to differ from the generally established rule of this Court which treats a finding on a question of custom as a mixed finding of fact and of law. In any case the finding in this instance rests, in our opinion, upon a misinterpretation of the most important document in the case, namely, the wajib-ul-arz, and that alone would be a valid ground for interference in any second appeal. We allow this appeal, set aside the order of the lower Appellate Court and restore the decree of the Court of first instance, with costs in favour of the defendants-appellants throughout.


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