TALIB HUSAIN KHAN Vs. DUKKHU KHAN

JUDGEMENT

(1.) APPEALS Nos 25 and 26 of 1920 arise oat of two suits for pre-emption. The point in the two appeal for cur decision is the same. The plaintiff claimed a right to pre-emption the basis of a custom. The defendants-vendees pleaded inter alia that, assuming that there was a custom of pie-emption, the plaintiff had no preferential right over them to take the property. The Court of first instance held in favour of the defendants vendees and dismissed the suit. The lower Appellate Court on tin plaintiff s appeal reversed the finding of the first Court on this one issue and remanded the case for decision on its merits. Hence the present appeal.

(2.) THE wajib-ul an on which the plaintiff relies divides up the no sharers of the, village into three categories. THE first is, near relations of the vendor in the same potti. Secondly, near relations of the vendor in another patti. Thirdly, co-sharers of the mahal. "It is on admitted fact that the vendor, vendees and the pre-emptor are all co sharers in the tame path and they are also all relations. Accepting the plaintiff s pedigree, the plaintiff is at least eleven degrees removed from the vendors. THE vendees pre slightly more distant, THE custom as set to the wajib-ul- arz does not give to one relation preferential right over another relation by reason of his being more closely related, THE plaintiff must show that he falls within the words karabatmand karibi before he can preempt as against the defendants, It has more than once been held in this confirm that the words karabatmand karibt do not include a relation who is so distant as the plaintiff, namely, eleven degrees removed. We can see no reason to go behind the decisions of this Court. We think the relationship between the plaintiff and the vendors is far too distant to enable the Court to hold that the plaintiff is a karabatmand karibi. THE plaintiff, there fore, does not fall within the first two categories, he must of necessity fall within the third category hissedar mahal. THE defend ants-vendees fall in the same category. THE custom does, not give the plaintiff a preferential right; because he is more closely related. THE decision of the Court below is clearly wrong and the decision of the Court of first instance was clearly right. We allow the appeal, and set aside the order of the Court below. THE plaintiff s suit will stand dismissed with costs in all Courts.