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Musammat Kulsumunnisa Vs. Khaslat HusaIn and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1989All896(2); 50Ind.Cas.179
AppellantMusammat Kulsumunnisa
RespondentKhaslat HusaIn and ors.
Excerpt:
pre-emption - custom, proof of--village owned by single proprietor, effect of--re-growth of custom--wajjb-ul-arz, entry in, construction of. - - it seems to us that where it is clearly shown that in the year 1842 the property was owned by a single proprietor, the latter alternative is the only reasonable one......an existing custom or to an arrangement between the co sharers who subscribed to the wajib-ul-arz of 1865. the proper attitude in which to approach the consideration of the case was to see which of these two alternatives was the most probable. it seems to us that where it is clearly shown that in the year 1842 the property was owned by a single proprietor, the latter alternative is the only reasonable one. we allow the appeal, set aside the decree of the lower appellate court and restore the decree of the court of first instance with costs in all courts, including in this court fees on the higher seals.
Judgment:

1. This appeal arises out of a suit for preemption. The first Court found that there was no custom. The lower Appellate Court reversed the decree and held that the custom prevailed. The wajib ul-arz of 1842 shows that there was then no custom in existence and there could be no custom then because the village was owned by a single proprietor, who was entitled to sell his property to whomsoever he pleased and his vendees would take unfettered with any right of preemption. No doubt a custom might gradually grow up if after the year 1842 the village became possessed by a number of co-sharers. But this would be a new custom and would require to be proved by evidence. The only difficulty we have in the present case is that there has been a finding by the lower Appellate Court that the custom exists. So far as this is a finding of fact it is binding upon us in second appeal. We think, however, that under the peculiar circumstances of this case a question of law really arises. A perusal of the judgment of the lower Appellate Court shows that the learned Judge thought there might possibly have been a custom of pre-emption long prior to the year 1882, which would spring up afresh every time that the property came into the hands of more than one co sharer. This view, we think, is erroneous. Once the property is in the hands of a single proprietor with no other co-sharer the custom has come to an end. It may, no doubt, grow up again but its re-growth would have to be established by evidence. It is admitted in this case that there was no evidence of the growth of the custom between 1842 and the year 1862, It is quite clear that the entry in the wajib-ul-arz of 1865 may either refer to an existing custom or to an arrangement between the co sharers who subscribed to the wajib-ul-arz of 1865. The proper attitude in which to approach the consideration of the case was to see which of these two alternatives was the most probable. It seems to us that where it is clearly shown that in the year 1842 the property was owned by a single proprietor, the latter alternative is the only reasonable one. We allow the appeal, set aside the decree of the lower Appellate Court and restore the decree of the Court of first instance with costs in all Courts, including in this Court fees on the higher seals.


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