BALWANT SINGH Vs. MARE SINGH

JUDGEMENT

(1.) This is a defendant-vender's appeal arising out of a suit for pre-emption. The defendant had denied the existence of any custom and the Court of first instance dismissed the suit. On appeal the learned District Judge set aside the decree of the First Court and decreed the suit, holding that the custom of pre-emption alleged by the plaintiff had been established. The evidence as to the existence of the custom produced by the plaintiff consists of an entry in the wajib-ul-arz of 1870 as well as decrees the years 1885 and 1916. As against that the defendant relied on the judgment and decree of; the year 1913.

(2.) An entry as to the right of pre-emption recorded in a wajib-ul-arz is certainly good prima facie evidence of the existence of the custom unless there is internal evidence in the wajib-ul-arz itself, or some other evidence or circumstance to rebut it. In the present case, although it appears that there was an earlier wajib- ul-arz of 1860 in existence, none was filed. We have only the entry in the wajib-ul- arz of 1870 which in the early portion of it does contain an express statement as to the existence of a right of pre-emption in favour of bhai haqiqi and then qaribi, then pattidars and then co-sharers in other pattis as against strangers. The clause in the wajib-ul-arz containing this recital, however, contains a large number of other matters over a dozen in number.

(3.) It has been contended Very strongly on behalf of the defendant-appellant that, reading the clause as a whole, this entry cannot be a record of custom. The test to be applied in such cases was laid down by the Special Beach in Fazal Hussain V/s. Muhammad Shari 24 Ind. 464 : 36 A. 471 : 12 A.L.J. 800, where it was pointed oat that if a wajib-ul-arz was of an unusual nature and in the very same clause in which reference was made to pre-emption, reference was also made to a number of other matters which could not possibly have been matters of custom, the presumption would be rebutted. This case has been, followed in a number of other cases, vide the case in Surijbali Singh V/s. Mohammad Nasir 48 Ind. Cas. 220 : 16 A.L.J. 879 where the right of one co-sharer to redeem a mortgage made by another co-sharer, was held not to be n possible record of custom.