JAGMOHAN PRASAD Vs. BRIJENDRA BAHADUR SINGH

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for pre-emption. The plaintiffs claim to pre-empt properties in a number of villages appended to the parent village Janar, shares in which have been transferred by defendants 2 and 3 to defendant No. 1. The sale-deed in question purports to bear the date, the 16 of August , 1919, but it was not presented for registration till the 11 of October, 1919. The plaintiffs, who are first cousins, base their claim on the custom and the conditions as entered in the wajib-ul-arz of the year 1247 Fasli. The district is a permanently settled district, and it is not disputed that that settlement has not yet expired, though in the meantime records have been revised. The plaintiffs alleged in the plaint that they had made two demands of pre-emption and in spite of those demands the defendants had not transferred the property to them. The defendant vendee denied the existence of a custom and denied that the plaintiffs had any right of pre-emption.

(2.) The learned Subordinate Judge has found that it is not established that there is a custom of pre-emption. He has, however, found that the condition embodied in the wajib-ul-arz is binding on the parties and can be taken advantage of by the plaintiffs. He has, however, gone on to find that it was incumbent on the plaintiffs to perform the two demands required by the Muhammadan law. Having come to the conclusion that it has not been established that the demands were made in fact, or made in accordance with the rule of the Muhammadan law, he has dismissed the suit.

(3.) As there has been some controversy as to the actual basis of the claim, it is necessary for us to refer to some of the paragraphs of the plaint. In paragraph 2 the plaintiffs alleged that the wajib-ul-arz prepared at the settlement of 1247 Fasli was still in force, and in paragraph 3 it was alleged that the condition relating to the pre-emption aforesaid is binding on all the co-sharers. Paragraph 4 stated that the sale-deed in question had been executed contrary to the custom and the conditions laid down in the wajib-ul-arz. Paragraph 5 referred to the demand alleged to have been made by the plaintiffs and paragraph 11 stated that on the basis of the custom of preemption obtaining in the villages in dispute and on the basis of the conditions laid down in the wajib-ul-arz and the principle of the Muhammadan law, the plaintiffs are entitled to maintain the suit.