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Nand Kishore Singh Vs. Ram Birich Rai and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.704
AppellantNand Kishore Singh
RespondentRam Birich Rai and anr.
Excerpt:
pre-emption - co-sharei--partition, effect of the sale in respect of which the present pre-emption suit was instituted took place on the 22nd of july 1909. - .....contract which is recorded in the wajib-ul-arz was to regulate the rights of the parties from the date of the partition, that is, from the 1st of july 1909. we think, therefore, that on the basis of contract, the. plaintiff was entitled to succeed. if all along a custom has existed and the custom is as in the earlier wajib-ul-arz, then the defendant, in the events that have happened, has no right of pre-emption while the plaintiff has. in any event, therefore, the plaintiff is entitled to succeed. we allow the appeal, set aside the decrees of both the courts below and decree the plaintiff's claim conditional upon his paying the sum of rs. 1,000 into court within three months from this date. if he pays in the money, he will receive his costs in all courts. in default of payment, the suit.....
Judgment:

1. This appeal arises out of a suit for pre-emption. The sale took place on the 22nd of July 1909. On the 21st of June previously, partition had been made and confirmed with effect from the 1st of July. Under the partition, the plaintiff and the vendor were co-sharers in one mahal. The defendant has ceased to be a co-sharer with the vendor altogether. His property is in a separate mohal On the 2nd of August 1909, the wajib-ul-arz was verified for the new mahal. There was also given in evidence the wajib-ul-arz of 1865. They are practically the same except that in 1865 the village evidently consisted of a single mahal. In the former wajib-ul-arz, there was a second class of co-sharers called ''near co-sharers.' After the partition, that class was designated as near co-sharers in the mahal'. Both the Courts below decided against the plaintiff on the ground that the new wajib-ul-arz was not in existence on the 22nd of July-1909, the date of the sale. They thought that under the old wajib-ul-arz the defendant had an equal right with the plaintiff. We think that the Courts below were wrong. Assuming that the rights of the parties were regulated by the custom set forth in the earlier wajib-ul-arz on the date of the sale, the defendant had ceased to be a co-sharer with the vendor and, therefore, he had no rights at all. Admittedly, he had no rights against the plaintiff if the rights of the parties were regulated by the wajib -ul-arz of the 2nd of August 1909. It is true that the wajib-ul arz was not verified until the 2nd of August 1909, but if we look at the case from the point of view of contract as evidenced by the recent wajib-ul-arz, it is pretty clear that the arrangements amongst the parties must have been come to long prior to the verification of the wajib-ul-arz, in all probability before the time when the partition was completed, that is to say, on the 21st of June. In any event, it is clear that the contract which is recorded in the wajib-ul-arz was to regulate the rights of the parties from the date of the partition, that is, from the 1st of July 1909. We think, therefore, that on the basis of contract, the. plaintiff was entitled to succeed. If all along a custom has existed and the custom is as in the earlier wajib-ul-arz, then the defendant, in the events that have happened, has no right of pre-emption while the plaintiff has. In any event, therefore, the plaintiff is entitled to succeed. We allow the appeal, set aside the decrees of both the Courts below and decree the plaintiff's claim conditional upon his paying the sum of Rs. 1,000 into Court within three months from this date. If he pays in the money, he will receive his costs in all Courts. In default of payment, the suit will stand dismissed with costs in all Courts.


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