OUDH BEHARI SINGH Vs. GAJADHAR JAIPURIYA

JUDGEMENT

(1.) RAL Manmatha Nath Bose and others, defendants 2 to 5, held the enclosure bearing municipal no. D-37/84 situate in Mohalla Baradeo, Banaras, on parjawatdari tenure from Babu Oudh behari Singh and others. They executed a sale deed of their rights of possession to the parjawat land to Gajadhar Jaipuriya, defendant 1 under a sale deed scribed on 29-3-1941 and registered on 1-4-1941.

(2.) OUDH Behari Singh instituted the suit against defendants 1 to 6 pre-empting the aforesaid sale alleging that custom of pre-emption prevailed in the entire city of Banaras and that he had the right to pre-empt on account of his owning property adjacent to this enclosure which had been sold.

(3.) GAJADHAR Jaipuriya, the vendee, contested the suit on various grounds, two of which were that the plaintiff had not made the necessary demands required by the Muhammadan Law of pre-emption and that the plaintiff had no right to take possession by dispossessing the parjawatdar in, possession, on the pretext of enforcing the right of pre-emption, and in breach of the parjawatdari agreement. The issues framed in the suit did not include a specific issue on the basis of the second contention mentioned above. There was an issue about the plaintiff's making demands according to Muhammadan Law and also about the plaintiff having a right of pre-emption and about the existence of the custom of pre-emption in mohalla Baradeo and in the case of existence of such a custom whether the defendants-respondents of another Province were bound by that custom.