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Mutsaddi Lal and ors. Vs. CaptaIn Dr. Kharag Bahadur Singh Karti, Through His Special Attorney Pt. Anant Ram - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All925; 78Ind.Cas.508
AppellantMutsaddi Lal and ors.
RespondentCaptaIn Dr. Kharag Bahadur Singh Karti, Through His Special Attorney Pt. Anant Ram
Cases ReferredDigambar Singh v. Ahmed Sayeed Khan.
Excerpt:
.....document containing no recital of pre-emption--later document creating right of pre-emption--custom, whether proved. - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]. - katju that this clause, zikr initiqal haqaty coataias reference to many other matters, and he claims that in view of the well-known rulings of this court this record of 1863 ought not to and cannot be..........before him and which according to its tenor was prepared in the year 1884.6. according to this document a right of preemption is created in favour of certain classes of persons. the first class of pre-emptor according to this wajib-ul-arz are own brothers. the second class consists of co-sharers in the village, and the third class consists of the zemindars of contiguous villages. it is then declared that if these three classes refuse to purchase then the sale can be made to a stranger {ghair shakhs).7. it was contended, in the first place, before us that the right of pre-emption which is recited in favour of the owners of contiguous villages is an extraordinary right and one which it is very unusual to find in records of custom. while this may be admitted, this fact by itself would.....
Judgment:

1. These two appeals have arisen out of two separate suits for pre-emption which were brought with respect to the sales of two items of property situated in a village called Purohitwala Birpur in the district of Dehra Dun.

2. The plaintiffs based their right of pre-emption upon a clause in the wajib-ul-arz.

3. The defendannts denied the existence of custom. Both the Courts below were of opinion that the custom existed, and after deciding some other question wjiich arose for disposal, awarded the plaintiffs in each case a decree fdr pre-emption.

4. The vendees have now come here in appeal and the first point which has been taken on their behalf is that the Courts below were erroneous in finding that a custom existed. After examination of the evidence on this point and the judgment of the Court below be are of opinion that this appeal ought to prevail. We think the decision of the Courts below is erroneous.

5. It is apparent from the judgment of the learned District Judge that for the purpose of deciding this issue he looked only to one waji-bul arz which was filed before him and which according to its tenor was prepared in the year 1884.

6. According to this document a right of preemption is created in favour of certain classes of persons. The first class of pre-emptor according to this wajib-ul-arz are own brothers. The second class consists of co-sharers in the village, and the third class consists of the zemindars of contiguous villages. It is then declared that if these three classes refuse to purchase then the sale can be made to a stranger {ghair shakhs).

7. It was contended, in the first place, before us that the right of pre-emption which is recited in favour of the owners of contiguous villages is an extraordinary right and one which it is very unusual to find in records of custom. While this may be admitted, this fact by itself would not be sufficient in our orinion to render the wajib-ul-arz of no value as evidence of custom and we do not think that for this simple reason the tvajib ul-arz could be withdrawn from the purview of the ruling cited by the learned Judge of the Court below, namely, Digambar Singh v. Ahmed Sayeed Khan.

8. The learned Judge, however, omitted to notice (though the first Court does notice in its judgment), that an earlier wajib-ul-arz 1803 was filed in the case.

9. A reference to this latter document shows, in the first place, that there is no definite recital of a custom at all. There is indeed a mention of rights of pre-emption in a clause of the wajib ul-arz which is headed ztkr intiqal haqiat (recital of transfers of property). This clause begins by providing for a right of pre-emption in favour of near co-sharers {hissedar karibi).

10. The second class of pre-emptors are the co-sharers of the village, hissedar deh. After these two classes have had the offer transfers can be made to any person.

11. It has been ponited out by Dr. Katju that this clause, zikr initiqal haqaty coataias reference to many other matters, and he claims that in view of the well-known rulings of this Court this record of 1863 ought not to and cannot be treated as a record of custom. There is no doubt that there are miscellaneous provisions in the clause in question and one of them amounts to a restraint upon the right of gift which could not possibly be the subject of a custom.

12. Apart from that, it is important to notice that the scheme of pre-emption which is laid down in this document of 1863 is quite different from the scheme which is to be found in the document of 1884.

13. As will be observed in the latter document the first right of pre-emption is given to own brothers irrespective of their being co-sharers or not, whereas in the 1863 document the first right of pre-emption is reserved to relations who are co-sharers. Then, again, as has been pointed out, the class of pre-emptors recited in the document of 1884 under the name of zemindars of contiguous villages finds no place in the document of 1863.

14. We are constrained to hold, therefore, that any presumption of the existence of a custom which arises from the production of this wajib-ul-arz of 1884 has been destroyed by a reference to the earlier document of 1863. It seems to us that on these two documents it is impossible to conclude that there is clear and unambiguous evidence of the existence of this custom of pre-emption in the village in question. We decide accordingly.

15. The result, therefore, is that both these appeals are allowed and the decrees of the Courts below are set aside and it is directed that both suits be dismissed with costs to the defendants in all Courts including in this Court fees on the higher scale.


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