ABDUL WAHID Vs. HATIM ALI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption with respect to the sale of a share situated in mahal munzabta of Abdul Wahid the plaintiff, in which the plaintiff and the vendor had proprietary interests, and in which the defendant vendee has not proprietary interest. There were many pleas taken by the defendants. Among others there were the pleas, that there was no custom of pre-emption in this village : that the custom did not apply to resumed muaft lands which had been sold and lastly, that the defendant being a proprietor in the village out of which this mahal had been carved, he was on an equal footing with the plaintiff. The Court of first instance decreed the claim; but on appeal the lower Appellate Court dismissed the suit in toto.

(2.) To prove the existence of this alleged custom the plaintiff produced a wajib-ul- arz of the year 1873 which contains a clause relating to the right of pre-emption. On behalf of the defendant three judgments, namely, of 1879, 1895 and 1899 were produced where a claim of preemption was asserted, but not allowed. The plaintiff produced a judgment of the year 1910 which we understand was affirmed by the High Court in second appeal and where a claim for pre-emption on the basis of custom was upheld. We may note that the judgments in the earlier oases proceeded on a view of law which does not now prevail. The learned Judges did not proceed on a presumption in favour of the plaintiff but rather thought that the wajib-ul-arz not having been signed by the parties was not conclusive. In the second case the learned Judge held that the custom did not apply to muafi dawami. It is possible that the whole wajib-ul-arz was not before him because in the wajib-ul-arz in chapter III, paragraph 1, there is a special mention that transfers of muafi dawami take effect subject to the right of pre-emption.

(3.) The last judgment is in favour of the plaintiff.