GANGA MAL Vs. RAM SARUP MAL

JUDGEMENT

(1.) THIS is a defendants vendees appeal arising out of a suit for pre-emption. The plaintiff same into Court seeking pre-emption on the basis of an alleged custom under whish he had a right of pre emption. It has been found by the Court below that these has been a partition in the village and that the plaintiff is no longer a Co-sharer of the vendors. The vendees equally are not co-sharers of the vendors. In spite of this fast, the Court below gave to the plaintiff a decree for pre-emption. The lower Appellate Court has found that, according to the custom, a karabatdar karibi, or a near relation, irrespective of the fast that he has no share in the mahal, has a right to pre-empt. It was found that the plaintiff is within seven decrees of one vendor and within eight degrees of another vendor. THIS fact be has held constitutes a karabatdar karibi that is a near relation, and has given the plaintiff a decree on this basis. It is only necessary to state the actual fasts to see how erroneous this decision is. In the year 1860 a wajib ul-arz was drawn up in which the custom of pre emption was set forth giving the first right to a near co- sharer and after him to other co sharers in the thok. In 1872 there was another record made in the wajib ul-arz. On this occasion the right gave the first prior claim to karabatdar karibi, then to co sharers in the same thok and then to co sharers in the other thoks. The custom as set out in the first wajib-ul-arz clearly gave no relations a right of pre-emption at all. The custom set out in the second wajib-ul arz gave the right to relations irrespective of the fast that they own no share in the mahal. One wajib-ul-arz is dated 1860, the other is dated 1872, and these have been deemed good evidence of custom. Apart from this, even assuming that the near relation has a right to pre-empt, it is only by an immense stretch of imagination that we can hold that a relation seven or eight degrees removed is a near relation. He certainly does not come within the definition of karabatdar karibi. In our opinion the suit ought to have been dismissed. We allow the appeal. The plaintiff?s suit will stand dismissed with costs in all Courts.