LALA NARSINGH PARSHAD Vs. SHIVA TAHAL RAI

JUDGEMENT

(1.) THIS was a suit for pos-session by right of pre-emption on the basis of two wajib-ul-arzes of 1833 and 1866. The Court of first instance came to the conclusion that the wajib-ul-arz in question incorporated a contract of pre- emption, and nota custom of pre-emption. The reasons which led that Court to that conclusion are that the preamble of the two wajib-ul-arzes contain expressions which go to show that they embody a contract only. The second reason is that the terms of the two wajib-ul-arzes are different, and that the difference in the terms is inconsistent with the existence of a custom. The lower appellate Court affirmed the decree of the first Court and adopted the reasons of that Court. The plaintiff comes to this Court in second appeal, and it is argued by his learned Vakil that notwithstanding the use of the term agreement in the preamble, and the differences in the terms of the two wajib-ul-arzes, they must be deemed to be records of the custom of preemption. In support of this proposition the learned Vakil relies on Hub Lal Tewari V/s. Ganga Sahu 7 A.L.J. 519. I am bound by that ruling. The result is that notwithstanding the use of the term agreement in the preamble and some difference between the two wajib-ul-arzes, they record a custom of pre-emption. I set aside the decrees of the Court below and remand the case under Order XLI, Rule 23 to the Court of first instance through the lower appellate Court for trial of the remaining issues. The appellant will get his costs which in this Court includes fees on the higher scale.