NARAIN SINGH Vs. GAJRAJ

JUDGEMENT

(1.) After hearing the learned Counsel we think that this appeal should prevail. The question is one of interpretation of a wajib-ul-arz. It is not denied that a custom of pre-emption exists. The question is whether under the record of that custom the plaintiff had a better right to acquire the property than the defendant-vendee. The Court of first instance held in favour of the plaintiff and gave him a decree for pre- emption. The lower appellate Court has differed from the view taken by the Court of first instance and holding that the plaintiff had no preferential right, it dismissed his claim. It seems to us on a perusal of the wajib-ul-arz before us that the interpretation of the lower appellate Court cannot be supported. According to what we find in the wajib-ul-arz the provisions relating to pre-emption are contained in the second chapter which deals with the rights of co-sharers inter se (ba khudha). We come then to Clause 13 which deals with the custom of preemption and there it is stated that where a share of a co-sharer is transferred by a sale or mortgage, first a co-sharer who is a sharik and then co-sharers of the mahal can claim pre- emption, provided they give the real value of the property, such as might be offered by a stranger. In case of a dispute as to the price the decision is to be made through the Court.

(2.) The learned Judge, relying on certain rulings to which he refers in his judgment, held that there no right of pre-emption arose in favour of any one in the village until there was an attempt to sell to a stranger, i.e., a person outside the village altogether.

(3.) The language of the wajib-ul-arz referred to in the case with which the learned Subordinate Judge has supported his judgment was different from the language of the wajib-ul-arz now before us, and in cases of this kind we cannot interpret the language of one document by the language of another.