1. These are two connected appeals which have arisen out of a suit for pre-emption. The, sale-deed which? was executed and which gave rise to the Was comprised two items of property, namely, a share in Mauza Dhaurahra and another share in Mauza Kamhariya.
2. The Court of first instance gave the plaintiff a decree in respect of the share in Dhaurahra but dismissed the claim with respect to the share in Kamhariya.
3. Both parties appealed and the result in the lower Court was that the plaintiffs' claim to Kamhariya was allowed and the defendant's appeal relating to the share in Dhauraha was dismissed.
4. We have, therefore, these two appeals, Nos. 1388 and 1389; in the former the vendee appellant raises the question of the plaintiffs' right of pre-emption with respect to Mauza Dhaurahra. As regards this case Dr. Katju has informed us that, as the record stands, he does not think that he is in a position to press his appeal and, therefore, we direct that appeal No. 1388 of 1921 be dismissed with costs to the respondents including in this Court fees on the higher scale.
5. There remains the other appeal, No. 1389 of 1921.
6. The question we have to deal with here is one of interpretation. The Judge of the Court below was of opinion that the plaintiff had a better right to preempt than the vendee-appellant, Nageshar Prasad Pande.
7. It seems that both the preemptors and the vendee belong to the same family as the vendor whose name was Brij Lai. On the pedigree which is set out in the record it seems to us to be clear enough that, whatever relationship does exist between the preemptors and the vendee on the one hand and the vendor on the other, it is a remote relationship.
8. Coming to the Wajib-ul-arz we find that there are four categories of pre-emptors. The first is described as 'hissedar Aziz karib,' that is, co-sharers who are near relations. The second category consists of 'hissedar aziz baeed,' that is to say, co-sharers who are distant relations. The third class consists of 'hissedaran palti,' and the fourth class of 'hissedaran deha.'
9. The controversy centres round the second category. The Court of first instance was of opinion that here the pre-emptor and the vendee being both distant relatives one had no preference over the other. The Munsif was of opinion that on the language of the Wajib-ul arz there was no preference inter se with respect to individuals who are included in each of the classes we have just mentioned. He was of opinion, therefore, that as both the parties were distant relations the purchaser, Nagashar Prasad, had just as good a right to take the property as the pre-emptor Ram Harak.
10. The Judge of the lower Appellate Court differed from the Munsif regarding this. He found that Earn Harak, the plaintiff, is one degree nearer in relationship to the vendor than the purchaser, Nageshar Prasad, and he thought that by reason of this circumstance Earn Harak had the better title.
11. The question we have to decide is no doubt one of some difficulty and it is almost impossible to ascertain with any approach to accuracy what the meaning of the words 'karib' and ' baeed' are as used in the Wajib-ul-arz.
12. Apart from that, however, we think that, as there is no special declaration in the Wajib-ul-arz to the effect that individuals in any particular class are to have preference, we ought not to find in favour of the plaintiff. After all, the plaintiff has come into Court asserting a better right to take this property then the vendee and the duty lay upon him to satisfy the Court by clear and unambiguous evidence that he had such a right. Whatever may be said about the language of this Wajib-ul-arz it certainly cannot be described as free from ambiguity.
13. We find that this principle has been laid down in various cases decided by the Preemption Bench. Two of these have been quoted before us today by Dr. Katju, namely, Sadho Gharan Misir v. Brij Raj Misir 11 Ind. Cas. 274, and Ataullah v. Shamsuddin 11 Ind. Cas. 278. In both those cases where the language of the W Wajib-ul-arz was ambiguous the Court decided upon the principle that the onus lay upon the plaintiff to establish his right of pre-emption by evidence which would satisfy the Court that the custom was certain. Applying the same principle here, we think that the judgment of the lower Appellate Court as regards the share in Kamhariya is wrong and ought to be reversed.
14. The result, therefore, is that we r allow Second Appeal No. 1389 of 1921 and Restore the decree of the Court of first instance in toto. The appallant in this case is entitled to his costs in the lower Appellate Court and in this Court including, here, fees on the higher scale.