1. The pedigree table of the family of the pre-emptors and vendors according to the Settlement Record of 1891-92 is as follows:
Khushala.____________|____________| |Dhari Bishen_______|_______ _________|_________ | | | | |Gobind Gokal Jhanju Sundar 2 other| (died with out (plff.) (plff.) sons. Descendants issue) vendors.
2. Plaintiffs sue for pre-emption in respect of a sale of some 57 kanals of land made by the descendants of Gobind in favour of the other defendants. They allege that the land in suit is 'ancestral' qua themselves inasmuch as it has descended to the vendors from Khushala, the common ancestor, and that consequently they as yah jaddis, are entitled to pre-emption, by virtue of Clause 29 of the wajib-ul-arz., In further appeal before us it has, also been contended that even if the land is not ancestral in the sense above indicated, plaintiffs are entitled to claim pre-emption by reason of the fact that they are land-owners, in the village, whereas the vendee is a total stranger. The latter plea was apparently put forward from the outset, but it has not been dealt with by the lower Courts, possibly for the very cogent reason that plaintiffs never attempted to substantiate it and do not appear to have in any way relied upon it, until the case came before this Court. The first Court held that the land was 'ancestral' but its finding is based admittedly on presump-tion and nothing more.
3. It certainly did not base its finding upon the evidence of the three old men whom plain-tiffs called to establish their allegations, for this evidence is not even referred to.
4. The Court candidly states that 'for the purposes of the present suit, it may be held that the land came to Dhari and Bishan from their father, and was not acquired by them.' This presumption or assumption of facts is Certainly not warranted by law, for there is not and cannot be any legal presumption that land is ancestral' in cases such as the present. It is just as probable that Dhari and Bishan acquired this land themselves as that Khushala their father acquired it, and the statement made in 1868 by Kundan, who held the land in farm from 1859, to the effect that it was acquired by Dhari and Bishan is entitled to great weight.
5. The Divisional Judge has accepted this statement as correctly representing the facts, and we see no reason to differ from his finding upon this point. Kundan presumably knew far more about the history of the acquisition than the three old men whom plaintiffs have now produced in support of their story, and there seems to be no reason why he should not have stated the truth when he made his statement at the settlement of 1868. He had nothing to gain, so far as we can see, for asserting contrary to the real facts, that the land was acquired by Dhari and Bishan. Against this statement we have the evidence of the three aged witnesses, The Divisional Judge (sic)avour of yak jaddi only-' Yak jaddi,' meaning of-No presumption that land is ancestral and, not self-ac-quired-Onus of proof. expressly says that he does not regard this evidence as of any value and the Munsif, as we have already observed, does not even refer to it, presumably because he too considered it of no value. Nor is this surprising when we remember that these persons are testifying to facts that ' must (if they occurred at all) have happened about 50 years before suit. In our opinion the statement of Kundan, which was made when the real state of affairs must have well-known and at a time when there was no object in not stating the truth, must carry far greater weight and we prefer to accept it as the more correct statement of the facts. It is, however, urged that the very fact that, Khushala's name is entered in the Shajra ' Nasab of the pedigree-table of the Settlement Record of 1891-92 raises a presumption that it is so recorded because Khushala was ' the person who acquired the land. But we do not think that under the circumstances of this case this presumption can legitimately be drawn. There is no note added by way of explanation to this pedigree-table and the history of the acquisition of the land cannot have been known with any certainty in 1891. Certainly, the facts must have been known far better in 1869 when 'Kundan made his statement and for the reason given, we prefer to accept that as more correctly representing what had actually occurred. The next point urged on behalf of plaintiffs-'appellants is that in any event, they as land-owners in the village have a superior right to that of the vendee who is a mere stranger.
6. Admittedly plaintiffs did not attempt to prove any custom to this effect, and admittedly the wajib-ul-arz gives a right of pre-emption only to yak jaddis. But it is urged, (1) that yak jaddis means agnates of the vendor and not persons descended from the ancestor who once held the land, and (2) that the provisions of the wajib-ul-arz were not intended to be exclusive and that under the provisions of the Punjab Laws Act, plaintiffs have a right of pre-emption by reason of their being land-owners in the village.
7. Upon the first point we entertain no doubt whatever. In cases such as this, the expression yak jaddi has always, so far as we know, been, construed to mean descendants of the ancestor who once held the land, and we ourselves cannot conceive that the expression can convey any other meaning. Even in the case relied on in support of their second contention by plaintiffs, Mr. Justice Roe interpreted the expression in this way (C. A. No 1647 of 1888 and Of. also C. A. No.. 982 of 1882). The argument upon this point is far too belated, even if it were in any wise sound, which we do not at all admit.
8. Upon the second point Mr. Sukh Dial cites the ruling of Mr. Justice Roe above referred to, but the learned Judge's decision as regards the question is at best half-hearted.
9. He observes that the case of co-sharers, not descendants of a common ancestor, does not seem to be provided for,' and he adds that 'there may possibly be some question how far the above clause of the wajib-ul-arz' (the very clause with which we are dealing in this case) would be sufficient to rebut the presumption in favour of pre-emption raised by the later Act of 1872, even as regards the mere right of mere general zamindars to exclude mere outsiders, but it seems to me clear that it doss not destroy the right of co-sharers which is so prominently asserted in the Act and which is not expressly dealt with by the wajib-ul-arz'.
10. Now Section 12 of Act IV of 1872 and its various clauses apply only 'in the absents of a custom to the contrary' and under the ruling of the Full Bench reported as Dilsukh Ram v. Nathu Singh 98 P.R. 1894 the onus of proving that a custom of; pre-emption is different from what it is stated to be in the wajib-ul-arz lies upon the person who wishes to prove that it is different. In the present case the wajib-ul-arz distinctly states that in this village there is no general custom of pre-emption and it then goes on to specify the one exception to the general rule, namely that a yak jaddi can pre-empt. Presumably, therefore, this is the custom in vogue among the parties, and as it is admitted that plaintiffs have not attempted to prove that the wajib-ul-arz does not accurately represent their custom in this respect, we must assume that by the custom prevailing in the village the only persons who have a right of pre-emption are the descendants of a common ancestor. And this, as already remarked, plaintiffs have not proved themselves to be.
11. Mr. Justice Roe's decision, we might observe, was given prior to the ruling of the Fall Bench and it cannot, therefore, be regarded as an authority upon the interpretation of the wajib-ul-arz. Had the learned Judge had the benefit of the decision of the Full Bench before him when he was writing his judgment, we do not think that he would have held that the wajib-ul-arz, which expressly states that there is no general custom of pre-emption' and specifically mentions the one instance in which a right of pre-emption can be asserted, was not exhaustive in the absence of evidence to prove that it did not state the custom accurately.
12. For these reasons we agree with the conclusion arrived at by the learned Divisional Judge and we accordingly dismiss this appeal with costs.