FAZAL HUSSAIN Vs. MUHAMMAD SHARIF

JUDGEMENT

(1.) This appeal arises out of a suit for pre-emption. The plaintiff adduced in evidence in support of the existence, of the custom an extract from the Wajib-ul- arz of 1861. He also produced a judgment of 1866 which shows that the right of pre-emption was at least asserted and that the pre-emptor got possession though possibly on a compromise decree. Both the Courts below have dismissed the plaintiff s claim.

(2.) The question for us to decide is whether or not the evidence which the plaintiff adduced was sufficient in the absence of all evidence to the contrary to establish the custom under which he claimed. In the Full Bench case of Musammat Rituraji Dubain v. Pahalwan Bhagat 7 Ind. Cas. 680 : 7 A.L.J. 1040 (F.B.) : 33 A. 196. it was decided that the entry in the Wajib-ul-arz of a right of pre-emption was to be taken as a prima facie record of a custom rather than of a contract and that the mere fact that at the beginning of the Wajib-ul-arz or at the end a word such as "ikrarnama" appears is not sufficient to make the entry an entry of a contract, and not of a custom. Almost every Wajib-ul-arz does contain certain matters which are arrangements between the co-sharers, nor is the mere fact that there are entries of arrangements in the Wajib-ul-arz sufficient to prevent the entry of pre-emption from being read as a record of a custom. In the Courts below and in this Court the case of Musammat Dhian Kuar v. Diwan Singh 10 Ind. Cas. 558 : 8 A.L.J. 786. was quoted and relied upon on behalf of the defendants. In that case the only evidence adduced on behalf of the plantiff was an extract from one Wajib-ul-arz. The lower Appellate Court had dismissed the plaintiff s claim and this Court affirmed its decree. If the case is carefully looked into, it will be seen that the case was entirely decided upon its own facts and circumstances. The Wajib-ul-arz was of an unusual nature and in the very same clause in which reference to pre- emption was made to a number of other matters which could not possibly have been matters of custom. Furthermore, the plaintiff in his plaint had referred to an earlier Wajib-ul-arz but had not filed it. The case was decided as we have said on its own facts and circumstances. In the present case the record is quite clear and free from ambiguity, nevertheless the case might have been quite different if the defendants had gone into evidence and had shown from the history of the village or other circumstances, that it was very improbable or impossible that a custom of pre-emption had grown up in the village. They might have shown (if such was the case) that there had been a number of sales to strangers, or that the entry of the right of pre-emption in different Wajib-ul-araiz were necessarily inconsistent. If the defendants had gone into any such evidence the Court might very wall have come to the conclusion that the entry in., one Wajib-ul-arz standing alone was insufficient to support the allegation of the existence of the custom, but where there is an entry in the Wajib-ul-arz which is clear and distinct and there is no evidence to the contrary, we think the Court ought, having regard to the prevailing practice, to hold that the custom of pre-emption exists.

(3.) The result is that we must allow the appeal, set aside the decrees of the Courts below and remand the suit to the Court of first instance, through the lower Appellate Court, with directions to re-admit it under its original number and to proceed to hear and determine the case according to law. Costs here and heretofore will be costs in the cause including in this Court fees on the higher scale.