MAHABIR SINGH Vs. MATABADAL SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for pre-emption, and the question for consideration is whether the plaintiffs are entitled to claim pre-emption in respect of the property in dispute. The property in question comprises a certain zamindari share in pargana Kariat Medha in the district of Jaunpur and was sold by Gay a Din Singh, the defendant No. 12, in favour of the defendants Nos. 1, 5, 10 and 11 for Rs. 1,300, on the 25 of February, 1919. The parganas constituting the district of Jaunpur were evidently recast some time after the permanent settlement of 1795, and pargana Kariat Medha is evidently identical with or included, in pargana Karindah, referred to at pages 185 and 245 in the Duncan Records of 1795.

(2.) The allegation of the plaintiffs was that there was a custom of pre-emption prevailing in the village and that the real sale consideration was Rs. 1,025. The trial court found that there was a custom of pre-emption in the village as recorded in the wajib-ul-arz of 1883-84, but it was inapplicable to the property in question wherein the vendor possessed only the "rights of a mohlamim." With regard to the amount of sale consideration the finding of the trial court was that the amount mentioned in the sale-deed was correct. The lower appellate court upheld that decree.

(3.) The main point for consideration in this appeal is whether the rights of a mohtamim, as recorded in the settlement of 1883-84, are transferable rights of a kind to which the custom of pre-emption, recorded in the wajib-ul-arz, can be made applicable.