RAMANAND Vs. HARJAS

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-emption. The plaintiff based his right both on the grounds of an existing arrangement between the co-sharers and also on the existence of a custom of pre-emption giving him a right. At the trial it would seem that the claim was practically confined to a claim based upon custom. There was mention made of pre-emption in the wajib-ul-arz of 1867, and in the later wajib-ul-arz of 1886, there is a statement "for other customs see the wajib- ul-arz of 1867". We do not think that this so called incorporation of the earlier wajib-ul-arz by the later one carries the plaintiff s case very far in so far as it is based on village arrangement. The later wajib-ul-arz says "for other customs see the earlier wajib-ul-arz". It comes to this that the case resls on the issue "does or does not, a custom of pre-emption alleged by the plaintiff exist amongst the co- sharers". The sole evidence adduced by the plaintiffs were the two wajib-ul-araiz already mentioned. The wajib-ul-arz of 1867 refers to a number of matters which it is extremely improbable were established customs or usages. The present case is extremely like the case of Dhian Kuar v. Diwan Singh 8 A.L.J. 786 : 10 Ind. Cas. 558. It was pointed out in that case that the wajib-ul-arz is by no means conclusive as to the existence or non-existence of a custom of pre-emption. In our opinion the finding on such an issue ought not to depend upon the construction of particular words and expressions in the wajib-ul arz. The existence or non- existence of a custom of pre emption should depend upon the opinion of the Court, after duly considering all the evidence adduced before it. If the wajib-ul-arz is given in evidence, it should be duly considered. In some cases, no doubt, very great weight will be given to it. In other cases, perhaps, much less weight or hardly any weight at all. But, in considering the question of the existence or non- existence of the custom of pre-emption, the Court should come to its decision in exactly the same way as it would come to a decision when considering the existence or non existance of any other custom. In our opinion, the wajib-ul-arz in the present case was wholly insufficient to establish the existence of the custom of pre-emption claimed by the plaintiffs. We allow the appeal, set aside the decree of the lower Appellate Court and restore the decree of the Court of first instance with costs including in this Court fees on the higher scale.