MUNSHI ASA RAM Vs. KANHAYA

JUDGEMENT

(1.) The only question in this appeal is whether or not the record-of-right of pre- emption is of a right arising from contract or existing by custom. This question depends upon the provisions of the wajib-ul-arzes of the village of 1267 and 1295 Faslis. The village in question is situate in the Saharanpur District. The Courts below held that the record was one of a custom and not of a contract and that, therefore, notwithstanding that the settlement had come to an end, the plaintiff was entitled to pre-empt the sale effected in favour of the defendant-appellant.

(2.) In the wajib-ul-arz of 1267, which is instituted "wajib-ul-arz, Yani dastur dehi mauza Sidhauli" after setting out the names of the co-sharers in the village, there is the following recital: "Whereas a new settlement of our village from July 1860 to 1890 for a period of 30 years has been made on a revenue of Rs. 484 annually, therefore, the agreement of us, proprietors and lambardars, is that till the term of this settlement and in future till the completion of the next settlement, we shall remain bound and carry out." The sentence is incomplete, it not being stated what the signatories to it agreed to carry out. But it appears to us to be clearly the intention that they were to carry out the provisions of the document contained in the subsequent clauses and that some such words as the provisions herein contained must be supplied.

(3.) In the later wajib-ul-arz, after dealing with the provisions relating to the payment of rent, partition and other matters, the document concludes with the following words: "in regard to the remaining customs of the village, the wajib-ul- arz of 1267 Fasli should be referred to."