MUKHA Vs. HAR SAHAI

JUDGEMENT

(1.) This appeal arises out of a suit for pre-emption based upon a village custom. The Court of first instance dismissed the suit holding that the custom was not proved. The lower Appellate Court has decreed the suit holding that the custom is proved. The plaintiff-respondent, to prove his custom, produced the wajib-ul-arz of the Settlement of 1872. He also produced a sale-deed of 18th May 1907, two decrees of 1893 and one decree of 1898. The defendants-appellants to rebut this evidence produced an old wajib-ul-arz of 1853 drawn up at a Settlement known as Mohan Singh s Settlement. The village in question, I may note, lies in the Meerut District. The wajib-ul-arz of 1872 has not been filed in extenso but only an extract setting forth that paragraph which relates to the right of pre-emption. This paragraph is headed "dastur-i-haq-i-shafa". It then goes on to record that a co- sharer who wishes to dispose of his share has the right to do so, but that he should offer it first of all to his own brother (bhai haqiqi) and then to his more distant relatives, and then to other co-sharers in "the thok and village. There is nothing in the language of this wajib-ul-arz to indicate that what was recorded was an agreement among the co-sharers and not a custom; and, following the principle laid down in Majidan Bibi v. Sheikh Hayatan A.W.N. (1897) 3 I must hold that this wajib-ul-arz is prima facie evidence of the existence of a custom. The sale deed of 18th May 1907 is, in no way, evidence of existence of a custom. It merely says that in that year a suit for pre-emption was brought and was compromised, the vendee selling the property to the pre-emptor. There is no mention either of custom or contract in this document.

(2.) The two decrees of 1893 do not show that the right of pre-emption claimed in those suits was based upon custom The word custom is not to be found in the decrees. Standing alone as they do, without the pleadings in the suits, or the issues, or decisions thereon, they are no evidence at all of custom, and do not come within Section 13 of the Evidence Act.

(3.) The decree of 1898 is accompanied by the judgment. In that case the right of preemption was based upon a condition entered in the wajib-ul-arz and the village custom. The custom apparently was not denied as the vendee in the case was also a co-sharer in the village. The matter was compromised. As evidence of a particular instance in which the custom was claimed these documents fall within Section 13 of the Evidence Act, though they are not of very great value.