RADHA KISHEN Vs. GULZARI LAL

JUDGEMENT

(1.) THIS is a defendant s appeal arising out of a suit for pre emption. The Court of first instance dismissed the suit on the ground that the custom did not exist. The lower Appellate Court set aside that decision and held that the custom was established and remanded the suit for decision on the other points. To prove the custom the plaintiff produced a wajib-ul arz for 1272 Fasli. To rebut the evidence contained therein the defendant produced a copy of the halat dehi. The Court of first instance held that the circumstances set forth in the halat dehi showed clearly that no custom of pre emption could possibly have existed in this village. The lower Appellate Court thinks that these circumstances are insufficient to rebut the entry in the wajib ul arz of 1272. Apparently the lower Appellate Court overlooked one of the facts clearly set forth in the halat dehi. That is that in the year 1250 Fasli, i.e., at the time of the Mutiny, this village was confiscated and it was held at least for twenty one years by Government before it gave it in grant to certain other persons. It was only one year after this that the wajib-ul-arz of 1272 Fasli was drawn up. THIS circumstance alone is sufficient to show that no custom could possibly have existed, for there was no proprietary body in existence at all for at least twenty-one years. THIS is another of those instances in which clearly the wishes of the Zamindar have been set forth and not the actual facts. No custom could possibly have been in existence in 1272 Fasli. We think that the Court below was in error. We set aside the order of the Court below and restore the decree of the Court of first instance. The appellant will have his costs in all Courts.