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Audh Bihari Pande Vs. Jadubans Misir and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All319; 29Ind.Cas.485
AppellantAudh Bihari Pande
RespondentJadubans Misir and ors.
Excerpt:
pre-emption - wajib-ul-arz, construction of--rights inter se--preferential claim. - .....the same thok as the vendor has a preferential right over the vendee who is a co-sharer in another thok. the courts below have dismissed the plaintiff's suit. it seems to us that the evidence is all the one way and there was no rebutting evidence. the only possible ground upon which it could be said that the plaintiff had no right was because the wajib-ul-arz of 1833 did not expressly record a right of co-sharers inter se. there is nothing necessarily inconsistent between the entry in the wajib-ul-arz of 1833 and that of the entry in the wajib-ul-arz of 1860 and 1869. a record of a right of preemption amongst co-sharers does not exclude the possibility of there being rights inter se. in the present case we have the villagers in a village in which admittedly a custom existed twice.....
Judgment:

1. This appeal arises out of a suit for pre-emption. The plaintiff is a co-sharer in the same thole as the vendor. The defendants-vendees are co-sharers tut in a different thok. The plaintiff adduced in evidence an extract from the wajib-ul-arz of 1833 and from that of 1860 and 1869. The wajib-ul-arz of 1833 records the mere fact that the co-sharers have a right of pre-emption. The wajib-ul-arz of 1860 records that there is a right of pre-emption and that the near co-sharer has a right, and after him the co-sharer in the thok, and after him co-sharers in other thoks. The wajib-ul-arz of 1869, in our opinion, is identical with the entry in the wajib-ul-arz of 1860, though inslightly different language. It is to be pointed out that both sides admit that some custom of pre-emption prevails, in the village. The only question is whether it is an incident of the custom that the plaintiff as a co-sharer in the same thok as the vendor has a preferential right over the vendee who is a co-sharer in another thok. The Courts below have dismissed the plaintiff's suit. It seems to us that the evidence is all the one way and there was no rebutting evidence. The only possible ground upon which it could be said that the plaintiff had no right was because the wajib-ul-arz of 1833 did not expressly record a right of co-sharers inter se. There is nothing necessarily inconsistent between the entry in the wajib-ul-arz of 1833 and that of the entry in the wajib-ul-arz of 1860 and 1869. A Record of a Right of preemption amongst co-sharers does not exclude the possibility of there being rights inter se. In the present case we have the villagers in a village in which admittedly a custom existed twice recording the details of the right, first in 1860 and subsequently, in 1869. In our opinion under the circumstances of this case the Court below was bound to have decreed the plaintiff's claim. With regard to the consideration, the first Court decided that the full amount had been paid and that evidence adduced by the plaintiff to show that the money had been given back was absolutely worthless. The lower Court did not decide this issue and we have accordingly considered the matter ourselves, and we think that the finding of the Court of first instance ought to be upheld. We accordingly allow the appeal, set aside the decrees of both the Courts below and give the plaintiff a decree for pre-emption conditional upon payment of the sum of Rs. 1,499 within three months from this date. If the money is paid within the time, the plaintiff will have his costs in all Courts including in this Court fees on the higher scale. If the money is not paid, the suit will stand dismissed with costs in all Courts, including in this Court fees on the higher scale.


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