BENI MADHO TEWARI Vs. RAM SUNDER TEWARI

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for pre-emption. The claim related to shares in four villages. With the fourth village we are not now concerned in appeal. Both the Courts below have decreed the claim in respect of the whole share sold in Hasanpur and half of the shares sold in Pauni and Walipur. They have, however, found that the consideration of Rs. 7,000 mentioned in the sale- deed, was not the true consideration and have fixed it at Rs. 3,000.

(2.) As regards the village Walipur, we are of opinion that the claim cannot be decreed. The plaintiffs, in order to prove that a custom of pre-emption exists in the village, relied upon a wajib-ul-arz of the year 1881 which contains a pre- emption clause similar to the clause in the wajib-ul-arz which was before the Full Bench, in the case of Randhir Singh V/s. Rajpal Missir 81 Ind. Cas. 25 : 22 A.L.J.R. 561 : 46 A. 478 : (1924) A.I.R (A.) 321, (F.A.F.O. No. 85 of 1923 decided on the 18 of December, 1923). It was held therein that such a clause furnished an internal evidence negativing the existence of a custom. We must, therefore, hold that no custom of pre-emption has been proved to exist in Walipur. The claim as regards the share sold in Walipur must be dismissed.

(3.) As to Hasanpur and Pauni, the first point raised on behalf of the defendants- appellants is that the dakbandi shows that in the year 1201 Fasli, corresponding to 1796 A.D., the villages were owned by a single proprietor named Subsa Tewari. It has also been proved by the defendants witnesses that at the present moment it is only the descendants of Subsa Tewari who are co-sharers in these villages. The plaintiffs relied on the wajib-ul-arz of 1381, which is still the wajib-ul-arz of the current settlement, the district of Jaunpur being permanently settled, and which wajib-ul-arz contains a clear entry of a record of custom. We are of opinion that the presumtion raised by the entry in the said wajib ul-arz has not been rebutted by the circumstance that more than 100 years ago the villages were owned by a single proprietor. The Court below has pointed out that the two sales which are known to have taken place, are such that the first one had taken place in favour of a co-sharer and as to the second one, though it had taken place in favour of a stranger, ultimately a part of the property was returned to the vendors. It was of opinion that these two instances furnished proof that the custom was at least being observed in the villages. Whether this is so or not, we are of opinion that the ordinary presumption which arises from the entry in the wajib-ul-arz has not been rebutted.