BHOLAI PANDEY Vs. KHIALI PANDEY

JUDGEMENT

(1.) This is a defendant-vendee's appeal arising out of a suit for pre-emption. The plaintiffs alleged that there was custom of pre-emption in the mahal in which the shares sold were situated and according to it they had a preference against the defendant, who also was a co-sharer in the same mahal. The defendant denied the existence of the custom and also denied that the plaintiffs had any preference over him.

(2.) The Court of first instance found that the plaintiffs and the vendor were co- sharers in one and the same patti but that the defendant-vendee was a co-sharer in another patti though situated in the same thok. It held that there was a custom of preemption in the village, and was of opinion that the plaintiffs being nearer in space had a preferential right over the defendant. That decree was affirmed by the lower Appellate Court. The lower Appellate Court, however, confused the meaning of thok with a "revenue-paying unit" as it calls it. It thought that the plaintiffs and the vendor were co-sharers in one and the same thok and the vendee was co- sharer in a different thok. This view obviously was incorrect. We have examined the khewat as well as the statement of the patwari on which the Court below relies and we have no doubt, whatsoever, that, all the three persons are co-sharers in one and the same thok though the plaintiffs and the vendor are also co-sharers in a subdivision of that thok.

(3.) There can be no doubt that the custom of pre-emption exists in this village. We have the wajib-ul-arzes of the years 1833 and 1860 both of which recite the existence of such a custom. In addition to these the plaintiffs produced a judgment dated the 15 May 1914, in which a custom of preemption was upheld. There is no contradiction in the terms of the wajib-ul-arzes of 1833 and 1860, the latter being a fuller one and there is absolutely nothing else to rebut the presumption.