BALLU THEKEDAR Vs. THAKUR DAN SINGH AND ANR

JUDGEMENT

(1.) This appeal arises out of a suit for pre emption in respect of some landed property situate in Kumaon. Some agricultural land situate in Mauza Borahkot in the district of Naini Tal was sold by Lala Joga Sah, Defendant-Respondent, to Ballu Thekedar Defendant-Appellant, by means of a sale-deed, dated the 31st of January, 1944. The Plaintiffs-Respondents, Thakur Dan Singh and Dr. Ram Singh, claimed to pre-empt the sale and filed a suit in the court of the Senior Civil Judge of Naini Tal. The Senior Civil Judge held that the Plaintiffs Respondents were entitled to pre empt the sale in pursuance of the custom of pre-emption prevailing in Kumaon and hence decreed the suit in favour of the Plaintiff-Respondents. The Defendant-Appellant, who was the vendor, has filed this appeal challenging this decision of the Senior Civil Judge of Naini Tal.

(2.) Pre-emption of the sale in this case was not claimed under the Agra Pre-emption Act but on the ground of the existence of a custom of pre-emption prevailing in Kumaon. The lower court has rightly remarked that neither party produced any very relevant evidence on this question of the existence of the custom of pre-emption, and held that Stowell's book on 'The Land Tenures of the Kumaun Division' could be considered sufficient authority to prove the custom. Relying on it, the lower court gave the decision on this question in favour of the Plaintiffs-Respondents. In this appeal it has been contended by Mr. Pathak on behalf of the Appellant that it was necessary for the Plaintiff-Respondents to prove the custom and to show that this custom was applicable to all the villages and areas in Kumaon. Mr. P.L. Banerji on behalf of the Plaintiffs-Respondents has, on the other hand, argued that the custom of pre-emption in Kumaon is so prevalent that it is not necessary in very individual case to prove its existence. It is so well-recognised a custom that strict proof of its existence in every case must be dispensed with.

(3.) In Premraj v. Chand Kunway,1917 AllLJ 607, their Lordships of the Privy Council, while dealing with a custom affecting the Jains which was at variance with the ordinary Hindu Law, re-marked: