RAJA BRIJ NARAIN RAI Vs. RAM DHARI RAI

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-emption. The sale was a sale of property comprised in two mahals. The mahals each consists of a number of villages. There also appears to have been a number of sub-divisions, called thoks. The plaintiff only sought to pre-empt the property comprised in one of the two mahals. Even in respect of this property he originally claimed that the vendor s title to a portion was bad. THIS, however, has been decided against him. The defendant-vendee pleaded that the plaintiff was entitled to pre-empt the property comprised in each of the mahals, and that not having done so, his suit must fail. It must be conceded that if the plaintiff was entitled to pre-empt all the property, the subject-matter of the sale, and he omitted a part, his suit must fail. A pre-emptor is. not entitled to choose what part of the property sold, he will exercise his right of pre-emption in respect of. The plaintiff in support of his case and to prove the existence of the custom gave in evidence an extract from the wajib-ul-arz. THIS document records that the first right is with a co-sharer who was a near relation. The second right was to a near co-sharer in the thok. The third right was to the co-sharer of another thok "minbad hissadaran digar thok;" after that the property might be sold to a stranger. Admittedly the plaintiff is a co-sharer in the mahal in which that part of the property is situate which was included in the sale-deed but excluded from the claim for pre-emption. Prima facie, therefore, as a co-sharer in another thok in the same mahal, the plaintiff would have a right as against a stranger. It is contended on behalf of the plaintiff that if this part of the wajib-ul- arz is read as giving a right to co-sharers in a different thok in the same mahal, then the meaning of the preceding portion of the entry is obscure because it refers to a near" co-sharer in the same thok. The plaintiff would, therefore, ask the Court to read the expression "hissadaran digar thok" as meaning the other co-sharers in the thok. We think there would be no justification in putting such a strained meaning on the clear words, particularly when we bear in mind that almost invariably where the entries in the wajib-ul-arz give the details of the right of pre- emption, all the different classes of co-sharers are exhausted before a sale can be made to a stranger. We must also in this connection remember that the entries in the wajib-ul-arz is the evidence which the plaintiff himself relies upon as proving the existence of the custom. There is no other evidence. We allow the appeal, set aside the order of the lower Appellate Court and restore the decree of the Court of first instance with costs in all Courts.