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(Kunwar) Pratap Singh Vs. Mt. Sumitra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All662; 118Ind.Cas.661
Appellant(Kunwar) Pratap Singh
RespondentMt. Sumitra and ors.
Cases ReferredKarimullah v. Atma Ram A.I.R.
Excerpt:
- .....prevailed, but has subsequently come to an end owing to the acquisition of the mahal by a single proprietor. at the preparation of the wajib-ul-arz in 1872-73 there was a custom of pre-emption in this village, and it applied to the mahal which is now in dispute. but subsequently in or about the year 1902 the mahal became the single zamindari of one mt. jasoda kunwar. at that time there was a fresh settlement and according to the rules in force no custom of pre-emption was recorded by the settlement officer. subsequently the mahal again came into the possession of several proprietors, and one of them has now set up a right of pre-emption in the case of a sale. the courts below have held that the custom of pre-emption revived when the mahal ceased to belong exclusively to a single.....
Judgment:

1. The main point raised in this appeal is whether prior to the passing of the Pre-emption Act a custom of pre-emption can be held to revive in a mahal in which the custom has previously prevailed, but has subsequently come to an end owing to the acquisition of the mahal by a single proprietor. At the preparation of the wajib-ul-arz in 1872-73 there was a custom of pre-emption in this village, and it applied to the mahal which is now in dispute. But subsequently in or about the year 1902 the mahal became the single zamindari of one Mt. Jasoda Kunwar. At that time there was a fresh settlement and according to the rules in force no custom of pre-emption was recorded by the settlement officer. Subsequently the mahal again came into the possession of several proprietors, and one of them has now set up a right of pre-emption in the case of a sale. The Courts below have held that the custom of pre-emption revived when the mahal ceased to belong exclusively to a single proprietor, and they have based their decision on a judgment of this Court reported in Dalip v. Khazan Singh : AIR1925All362 . That judgment takes a view contrary to the one which has previously been expressed by the Preemption Bench of this Court, in particular the case reported in Kamr-un-nissa v. Sughra Bibi [1917] 39 All. 480 which is discussed at length in the later ruling. That case has been followed many times, and has never as far as we know been distinguished in any other ruling. The point taken is that the mahal is a separate entity and when fresh mahal is created which belongs to a single proprietor, any custom of pre-emption which may have existed when there were several proprietors, dies. The learned Judges who decided the case in Dalip v. Khazan Singh : AIR1925All362 , make a distinction between a case where the mahal is co-extensive with the mauza, as appears to have been the case in that reported in Kamr-un-nissa v. Sughra Bibi [1917] 39 All. 480 and where the mahal is not co-extensive with the mauza. Their view was that the custom means a practice prevailing among a certain community. And they infer that if the community continues to exist the fact that a portion of the village inhabited by that community comes into the possession of a single person will not affect a right which belongs to the community as such. But this view is not in accordance with other decisions of this Court, in particular the case of Makund Singh v. Gopi Prasad A.I.R. 1921 All. 238 and in another ruling reported in Karimullah v. Atma Ram A.I.R. 1921 All. 53, is definitely held that even if a single proprietor declared that if there were a plurality of cosharers the right of preemption would accrue, such a declaration on the part of a proprietor will have no effect, and that the custom having once come to an end, could not be revived although no doubt in the course of time a new custom might come into existence. In our opinion this is the correct view of the law. We consider that the custom of pre-emption came to an end when this mahal came into the sole possession of Mt. Jasoda and that its subsequent acquisition by several co-sharers did not recreate the custom of lot pre-emption. On this point this appeal depends and it is not necessary to consider the other questions raised. Holding that the custom of pre-emption did not any longer subsist in this mahal we allow this appeal with costs and dismiss this suit with costs including in this Court fees on the higher scale.


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