CHHAJJU Vs. ALAM CHAND

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 wajib- ul-arz of 1863 was evidence of a custom.

(2.) It is contended before us that, because the wajib-ul-arz in question is so framed as to refer to matters other than preemption, it ought not to be 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 Husain V/s. Muhammad Sharif (1914) I.L.R, 36 All. 471. It was also enunciated in another case Surajbali Singh V/s. Mohammad Nasir (1918) 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 redeem. Clearly in cases of this latter description the wajib-ul-arz does contain matters which cannot possibly be the subject of custom.