ABHAINANDAN PRASAD Vs. PASHPAT NATH PANDE

JUDGEMENT

(1.) In support of the alleged custom the plaintiff relied on entries in the wajib-ul- arzea of 1833, 1860 and 1885. He also relied on a judgment in the ease of the year 1901 and a judgment of the year 1907, and also on a reference in those judgments to an earlier pre-emption decree of 1880. On the other hand, it has been contended on behalf of the defendant that having regard to the previous history of this village, the variations in the three wajib-ul-arzes, and the partition which has since been effected, there is really no custom in this village. In order to show the previous history of this village reliance is placed on two documents called Kaifiyat Mahtawi and Kaifiyat Sarishtai Nizamat of 1833 and 1860 respectively. These documents show that soon after the district of Gorakhpur had been acquired by the British Government from the Nawab Wazir of Oudh, the village was farmed out to one Sheikh Farhat from 1210 to 1212 Fasli. From 1213 to 1215 Fasli the village was in possession of certain mortgagees, Mirza Hasan Ali Beg and Vssubut Ali. From 1216 to 1219 Fasli it was farmed out to three persons, Ganeah Dat, Balgobind and Dat Ram. From 1220 to 1224 Fasli Ganesh Dat and Dat Ram were in possession on the 29 of February, 1818, however, the whole village appears to have been sold and the name of Gohind Singh, auction purchaser, was recorded exclusively. Subsequent to this and about 1820 Gobind Singh sold this village to three persons Sheo Nath, Nandlal and Balgobind. At the time of the regular settlement of 1833 a four anna share was recorded in the names of Uma Dat and Sheo Nath, an eight annas share in the names of Nandlal and Balgobind and the remaining four annas share in the names of Bisheshar Dat, Mahesh Dat and Shankar Dat. It is not disputed that from the year 1820 onwards there have always been more than one co-sharer in this village. It is strongly contended that inasmuch as the village was owned by a single proprietor from the year 1818 to 1820 there could possibly have been no occasion for the growth of a custom of pre emption and that, therefore, the entry in the wajib-ul-arz of 1833 must be taken to be a record of contract. It is then urged that the subsequent entries in the wajib-ul-arzes of 1860 and 1885 must therefore also be presumed to have been records of contract. We are of opinion that this is not a correct way of approaching the question. The plaintiff is entitled to rely on the entry in the wajib-ul-arz of the last settlement of 1885. That entry raises a prima facie presumption that there is a custom of pre-emption existing in this village. The plaintiff can further supplement this evidence by the entries in the earlier wajib-ul-arzes of 1860 and 1833 as corroborative evidence. If these wajib-ul-arzes raise a, prima fade presumption that a custom of pre-emption exists in the village, the burden would lie on the defendant vendee to show the contrary by producing evidence to rebut that presumption. All that is established in this oa3e is that about the year 1820, that is to say more than 100 years ago (and about 55 years prior to the last settlement) there was a single proprietor in this village. In our opinion this circumstance by itself is not sufficient to rebut the presumption arising from the entries in the successive wajib-ul-arzes. A period of 100 years and even of 55 years is not necessarily too short for the growth of a custom of preemption in these provinces where such a custom is well-known to be very common. It is not essential to show that such a custom is immemorial, vide Kuar Sen V/s. Mamman (1895) 17 All. 87 and Lakhraj Bharthi V/s. Anrudh Tiwari (1906) 28 All. 434.

(2.) The next point urged is that inasmuch as there are variations in the there wajib-ul-arzes the presumption is negatived. It is pointed out that under the wajib-ul-arz of 1833 a right was given to mere co-sharers in the village, whereas in the wajib-ul-arz of 1860 aright was given to near co-sharers (hissedar qaribi), then to co-sharers in the thok and then to the other co-sharers in the village, and in the ivajib-ul-arz of 1885 a right was given to own brothers, then to near relations, then to co-sharers in the patti and then to co-sharers in the village. It is apparent, therefore, that in the year 1833 there wag only one category of pre- emptors, in 1860 there were three categories, and in 1885 there were four categories.

(3.) We must, however, note that so far as the right to pre-empt the property in favour of a co-sharers as against a stranger is concerned, this was recognized in all the throe wajib-ul-arzes. The plaintiff is not claiming a preference against the defendant on the ground that he is either an own brother or a near relation of the vendor. He claims the right of pre-emption on the ground that ho is a co-sharer while the defendant-vendee is a perfect stranger. The addition of the new categories in the wajib-ul-arz of 1885, therefore, does not necessarily negative the existence of a custom of pre-emption in favour of a co-sharer as against a stranger.