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Lala Baru Mal and ors. Vs. Tansukh Rai and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in29Ind.Cas.1001
AppellantLala Baru Mal and ors.
RespondentTansukh Rai and anr.
Cases ReferredDhian Kuar v. Diwan Singh
Excerpt:
pre-emption - finding of fact on evidence--saharanpur district--language of wajib-ul-arz--second appeal. - - 786. it seems to us that the court considering the proper issue in the case, namely, does or does not the custom exist, was justified in saying that he was not satisfied that the custom existed on the evidence produced, bearing in mind that the onus lay on the plaintiff. this court held that the court below was entitled to consider the language of the wajib-ul-arz, the fact that the earlier wajib-ul-araiz had not been produced and that if it came to the conclusion that the plaintiff by merely producing the extract from the wajib-ul-arz of 1867 had failed to prove the existence of the custom, the court was justified in its conclusion......to a number of other matters which it is extremely improbable were existing customs. in fact the wajib-ul-arz appears to be almost, if not quite identical with the wajib-ul-arz referred to in the case of dhian kuar v. diwan singh 10 ind. cas. 558 : 8 a.l.j. 786. it seems to us that the court considering the proper issue in the case, namely, does or does not the custom exist, was justified in saying that he was not satisfied that the custom existed on the evidence produced, bearing in mind that the onus lay on the plaintiff. this would be a finding of fact binding on this court in second appeal. no doubt it has been decided by a full bench of this court that entries in the wajib-ul-arz are prima facie to be regarded as referring to customs rather than to agreements. but this.....
Judgment:

1. This appeal arises out of a suit for pre-emption. The plaintiff is a co-sharer. The vendee is a stranger. The plaintiff adduced in evidence in support of the existence of the alleged custom an extract from the wajib-ul-arz of 1867. No earlier wajib-ul-arz was produced. He also adduced in evidence two decrees, one based on a compromise and the other a decree in which the question of custom was not decided. There were some oral evidence but on cross-examination these witnesses had to admit that there had been sales to strangers and no pre emption claimed. Lastly he produced an extract from the wajib-ul-arz for the current Settlement, which refers to the wajib-ul-arz of 1867 for the 'customs' which were not specified iu the document itself. The entry in the wajib-ul-arz of 1867 no doubt refers to a righ of pre-emption. In the very same clause, however, there are references, to a number of other matters which it is extremely improbable were existing customs. In fact the wajib-ul-arz appears to be almost, if not quite identical with the wajib-ul-arz referred to in the case of Dhian Kuar v. Diwan Singh 10 Ind. Cas. 558 : 8 A.L.J. 786. It seems to us that the Court considering the proper issue in the case, namely, does or does not the custom exist, was justified in saying that he was not satisfied that the custom existed on the evidence produced, bearing in mind that the onus lay on the plaintiff. This would be a finding of fact binding on this Court in second appeal. No doubt it has been decided by a Full Bench of this Court that entries in the wajib-ul-arz are prima facie to be regarded as referring to customs rather than to agreements. But this does not preclude the Court from taking into consideration, when considering the evidence as a whole, the language which is used in the wajib-ul-arz. The learned District Judge commences his judgment with the following words: 'As regards the entry in the wajib-ul-arz 'relating to pre-emption, it seems to bo settled as the result of a series of rulings of the Hon'ble High Court that in the Saharanpur District the wajib-ul-arz is evidence of contract which lasts only during the Settlement to which it relates and is not proof of custom.' We do not think that these remarks are correct. This Court has never decided that a custom of pre-emption cannot exist in the Haharanpur District, or that the wajib-ul-araiz in Saharanpur are not evidence of a custom. Each case should be decided on its own facts and circumstances. In the case of Dhian Kuar v. Diwan Singh 10 Ind. Cas. 558 : 8 A.L.J. 786 to which we have already referred, the lower Appellate Court held on the evidence that the custom of pre-emption was not proved. This Court in second appeal referred to the evidence that had been produced on behalf of the plaintiff. It consisted of an entry from the wajib-ul-arz of 1867 and nothing more. The earlier wajib-ul-araiz were not produced. This Court held that the Court below was entitled to consider the language of the wajib-ul-arz, the fact that the earlier wajib-ul-araiz had not been produced and that if it came to the conclusion that the plaintiff by merely producing the extract from the wajib-ul-arz of 1867 had failed to prove the existence of the custom, the Court was justified in its conclusion. To all intents and purposes the present case stands on exactly the same basis. We, therefore, accept the finding of the Court below as a finding of fact binding on this Court in second appeal. We dismiss the appeal with costs.


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