ABDUL RAB Vs. AKBAR HUSAIN

JUDGEMENT

(1.) This is a pre-emption appeal and raises only one question of law, because the other questions involved in the suit have not been decided by the lower appellate Court. The plaintiff who is the appellant before us, based his suit on Section 5, Agra Pre-emption Act, and in order to comply with the requirements of that section produced an extract from the Wajibularz containing an entry as regards preemption.

(2.) The Court of first instance decreed the claim on condition of payment of Rs. 1,900. There was an appeal and there was a cross-objection. The defendant's appeal succeeded on the ground that the entry in the Wajibularz read with Section 5, Agra Pre-emption Act, did not allow the plaintiff to maintain the suit. Section 5, Agra Preemption Act, lays down that a right of pre-emption shall be deemed to exist only in mahals or villages in respect of which any Wajibularz prepared prior to the commencement of this Act records a custom, contract or declaration :(a) recognizing, conferring or declaring a right of pre-emption, expressly or by necessary implication, whatever its extent and in whatever form it may be expressed, etc.

(3.) The extract from the Wajibularz that has been produced runs as follows: Dastur darbab haq shafa-shafa ka koi khas dastur nshin hai-Bamaujib rawciz mulk aur sharake hai.