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Bidhata Ram and ors. Vs. Ram Cheri and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.251
AppellantBidhata Ram and ors.
RespondentRam Cheri and anr.
Excerpt:
pre-emption - custom or contract--proof. - - it does not appear whether or not the plaintiff in the case was, like the plaintiffs in the case now before us, merely an owner of an isolated plot, or a co-sharer in the zemindari. a custom of pre-emption must like any other custom be proved by clear and sufficient evidence......wajib-ul-araiz. the first is as follows:in this village, land is subdivided. all have power to sell their property to a stranger with consent of shikmis.2. this is very obscure. in all probability the division of the land at that time was very different to what it is at present. but there is no reference whatever to the owner of isolated plots. the second extract is as follows:in case proper price is paid, first a co-sharer in a mahul and then a co-sharer in the village will have the right of preemption.3. this is very different from the first. it gives a right to a co-sharer in the village and it may be that this was merely an arrangement entered into by the parties which would terminate with the settlement. however this may be, in our opinion, the evidence adduced by the plaintiff.....
Judgment:

1. This appeal arises out of a suit for pre-emption. The property sold is zemindari. The plaintiffs are owners of isolated plots. They are not co-sharers with the vendors in the sense that they share in the profits of the vendor's property, or the vendors in theirs nor are they jointly responsible for Government revenue. This being the case it lay upon the plaintiffs to prove not only that some custom of pre-emption existed in the village but also that there was a custom of pre-emption which gave the owner of an isolated plot a right of pre-emption in the case of the sale of a zemindari share. The only evidence adduced in support of the case of the plaintiffs was the wajib-ul-arz of 1842 and the of 1S86 and also one case in which pre-emption was claimed, and which resulted in a compromise. It does not appear whether or not the plaintiff in the case was, like the plaintiffs in the case now before us, merely an owner of an isolated plot, or a co-sharer in the zemindari. If he was the latter, the case is really of no importance whatever. The case then really rests on the extracts from the two wajib-ul-araiz. The first is as follows:

In this village, land is subdivided. All have power to sell their property to a stranger with consent of Shikmis.

2. This is very obscure. In all probability the division of the land at that time was very different to what it is at present. But there is no reference whatever to the owner of isolated plots. The second extract is as follows:

In case proper price is paid, first a co-sharer in a mahul and then a co-sharer in the village will have the right of preemption.

3. This is very different from the first. It gives a right to a co-sharer in the village and it may be that this was merely an arrangement entered into by the parties which would terminate with the Settlement. However this may be, in our opinion, the evidence adduced by the plaintiff in support of the right which he alleged was altogether insufficient to establish his claim. A custom of pre-emption must like any other custom be proved by clear and sufficient evidence. We, therefore, 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 scale.


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