MUKHA Vs. MITTER SEN

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-emption, and the main question for consideration is whether a custom of pre-emption exists in the mahal in which the -property in dispute is situated. The Courts below were of opinion that no such custom was established. We have examined the wajib-ul-arz produced in the case and are not satisfied that the plaintiff has established by clear evidence that an invariable custom existed in the village of the kind set up. The wajib-ul-arz of 1863 docs not purport specifically to record a custom of pre-emption. All that it says is that in the case of a sale or mortgage by a co-sharer the pre-emptive right shall belong first to an own brother, then to the uncle and near brothers, and in case of their refusal, to the other co-sharers in the patti and village. The wajib-ul- arz of 1997 F purports to record a custom of preemption, but gives the right of pre-emption first to near relations (rishtedar nazdiki) then to the co-sharers in the patti and khewat, and in case of their refusal, to the co-sharers of the other pattis. It does not give any right of pre-emption in the case of a mortgage; and while it lumps up the categories mentioned in the earlier wajib-ul-arz it extends the right of pre-emption to near relations who are not even co-sharers of the village. It moreover creates a new category in so far as it allows competition between co- sharers in the patti and khewat and co-sharers in the other pattis, whereas no such expedition was recognized by the earlier wajib-ul-arz. The wajib-ul-arz prepared in the last settlement of 1325 F merely says that the customs recorded in the wajib-ul-arz of 1863 will remain in force. It is singular however that no reference is made therein to the wajib-ul-arz of the intermediate settlement namely that of 1297F, and considering that there is in several respects a material variation between the wajib-ul-arzes of 1863 and 1297F it is difficult for us to say that an ancient and invariable custom of pre-emption has been proved to have existed in the village. At its best the evidence adduced in ambiguous both as regards the incidents attaching to the right of pre-emption and the circumstances in which that right comes into existence.

(2.) THE learned Counsel for the plaintiff-appellant has invited our attention to a decree for pre-emption which was obtained in the year 1903. But a reference to the abstract of the plaint given in that decree shows that the suit in which that decree, was passed was passed on contract. That decree is therefore no evidence of the existence of any custom in the village. We see no reason, in these circumstances, to take a view different from that at which the Court below has arrived. THE appeal must therefore fail and it is dismissed with costs including fees in this Court on the higher scale.