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Ram Sarup and anr. Vs. Ram Dei and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All14; 54Ind.Cas.786
AppellantRam Sarup and anr.
RespondentRam Dei and ors.
Excerpt:
custom - pre-emption--village confiscated by government--settlement record, entry in, value of. - .....a sale in reference to which a claim for pre-emption was made successfully, though whether it was based on custom or on contract is not shown. in 1902 there was another preemption case in which the suit was withdrawn. in 1909 there were two other sales in respect to which two suits were brought, and both of them were dismissed on the ground that no custom existed. on this evidence the court of first instance dismissed the suit, holding that the custom was not established. the lower appellate court was of opinion that the facts disclosed the existence of a custom. in our opinion the decision of the court of first instance was correct. the entries made in 1860 and 1870 are clearly not good evidence of custom, as we have shown above. we allow the appeal, set aside the order of the court.....
Judgment:

1. The sole question in this appeal is whether the evidence on the record is sufficient to establish the existence of the custom of pre-emption. The village in question formerly belonged to certain ladies. After the mutiny of 1857 Government confiscated the village and subsequently made a settlement thereof with other persons. It is obvious that when the property was in the hands of the Government, there were no owners except Government and no custom of pre-emption could possibly have then existed. Three years later, that is in 1860, when a Settlement Record was made, there was actually recorded the existence of a custom of pre-emption. This record is obviously incorrect, for whatever might have been the previous state of affairs before the confiscation, the old custom could no longer have continued to exist while the property was in the hands of Government. Obviously a custom could not have arisen between 1857 and 1860. In the year 1870 another Settlement Record was made in which the custom was again recorded. At the last Settlement no record of custom whatever was made a. In the year 1896, there was a sale in reference to which a claim for pre-emption was made successfully, though whether it was based on custom or on contract is not shown. In 1902 there was another preemption case in which the suit was withdrawn. In 1909 there were two other sales in respect to which two suits were brought, and both of them were dismissed on the ground that no custom existed. On this evidence the Court of first instance dismissed the suit, holding that the custom was not established. The lower Appellate Court was of opinion that the facts disclosed the existence of a custom. In our opinion the decision of the Court of first instance was correct. The entries made in 1860 and 1870 are clearly not good evidence of custom, as we have shown above. We allow the appeal, set aside the order of the Court below and restore the decree of the Court of first instance. The suit will stand dismissed with costs in all Courts.


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