ALAMA CHAND Vs. CHHAJJU

JUDGEMENT

(1.) Two points have been discussed before us in this second appeal The first point is whether the Courts below were right in holding that the waj b-ul-arz of 1863 was evidence of a custom.

(2.) It is contended before us that because the wajib-ul-arz it question is so framed as to refer to matters other than pre-emption it ought not to foe treated as a record of custom but merely as a record of contract.

(3.) It has no doubt been held in a number of cases which have been consistently followed that, if a wajib-ul-arz contains matters which could not possibly be the subject of a custom then the ordinary presumption that the wajib-ul-arz is a record of custom is overturned. That principle is laid down in the case of Fazal Hussain, V/s. Muhammad Sharif 24 Ind. Cas 464 : 36 A. 471 : 12 A.L.J. 800. It was also enunciated in another case reported as Surajbali S ngh V/s. Mohammad Nisar 48 Ind. Cas 220 : 16 A.L.J. 879. In this latter case We may observe the wajib-ul- arz upon which reliance was placed in addition to providing for pre-emption made provisions for other matters such as redemption of property mortgaged by a person who had no interest in the right to edeem Clearly in eases of this latter description the wajib-ul-arz does contain matters which cannot possibly be the subject of custom.