MAQSUD ALI Vs. ABDULLAH

JUDGEMENT

(1.) In this case we are concerned with the interpretation of two wajib-ul-arzes. The question to be decided is whether the plaintiff, who was Nasir Ullah Khan now represented by the present appellants, Maqsud Ali and others, was entitled to a preference in the matter of exercising a right of pre-emption. The vendor of the property in dispute was own brother of Nasir Ullah, and the purchaser Kabul Khan who is now represented by two defendants, Ahsan Ali and Abdullah, was a co- sharer in the village and also a relation, but a distant relation, of the vendor.

(2.) The Court of first instance gave the plaintiff a decree for pre-emption on a finding that on the language of the record of custom as contained in the two wajib-ul-arzes the plaintiff as own brother of the vendor had better right than the vendee who was a co-sharer only and in any case a more distant relation. The lower appellate Court has reversed the finding of the Court of first instance on this point, being of opinion that the plaintiff as own brother of the vendor had no better right. Another question was raised in the Court of first instance. It was pleaded by the vendee that the plaintiff had full knowledge of the sale sought to be pre-empted and that he had acquiesced therein so as to be no longer entitled to assert a claim for pre-emption. The Court of first instance held that the transaction now in dispute was carried out without the knowledge of the plaintiff and that there was no reason to debar him from maintaining the suit. On this question of the consent or acquiescence of the plaintiff the judgment of the lower appellate Court is silent.

(3.) We have decided to deal with this question of fact ourselves as it is not worth while sending the case back to the lower appellate Court for finding. In all probability the case would come before some other Judge than the one who heard the appeal.