DWARKA SINGH Vs. SHEO SHANKAR SINGH

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for pre-emption. There were three plaintiffs, Dwarka Singh, Plaintiff No. 1, being the lambardar and the other two plaintiffs co-sharers in the same thok in which the property sold is situated. The suit related to two taluqas, each of which is a separate mahal called Dodhwa Asli and Surauja Asli. The plaintiff did not admit that the consideration mentioned in the sale-deed was the true consideration. The defendants maintained that the consideration mentioned in the deed was the true consideration and denied the existence of a custom of pre-emption and also pleaded an acquiescence on the part of the plaintiffs. The copy of the wajib-ul-arz produced by the plaintiffs was at places illegible and the Court ordered the original to be sent for. When the original arrived and the language of the wajib-ul-arz was clearly understood, the defendants took a further legal plea that even if the alleged custom never existed they could sue for pre-emption. The plaintiffs had at least one month's notice to meet this objection and the Court expressed its readiness to allow them to produce further evidence if they chose to do so. No such evidence, however, was produced. The Court below found the consideration mentioned in the sale-deed to be slightly exaggerated and that there was no acquiescence on the part of the plaintiffs. Both these findings are not challenged in appeal. The Court further found that no custom existed in these taluqas because about the year 1806 there were single proprietors of both the taluqas. It further, held that even if a custom existed, the right to pre-empt was confined to lambardars who were co-sharers, and not to mere co-sharers. The suit was accordingly dismissed.

(2.) We find it difficult to accept the view of the Court below that there is no prima facie evidence to prove the existence of a custom. The district is a permanently settled district and with the exception of a revisional settlement there has been no settlement since 1842, when the last wajib-ul-arz was prepared. A copy of the wajib-ul-arz and the robkar of the year show,that there was a right of pre-emption fully recognized as prevailing in these taluqas. That evidence is a prima facie proof of the existence of a custom of pre-emption. The mere fact that about 1806 these taluqas were settled with single persons can by no means be sufficient to destroy the presumption. It is not even shown that these persons were accepting the settlement only as single individuals and not as managing members of a joint Hindu family. In any case the interval of time between this period and the entry of the right of pre-emption was sufficiently long to leave the presumption unrebutted. We, therefore, accept the plaintiffs contention that a custom of pre-emption exists in these mahals.

(3.) It was, however, admitted in the plaint that the incidents of this custom are recorded in the wajib-ul-arz of 1842. Clause 8 of that wajib-ul-arz states: If any of us wants to transfer his field or his share by mortgage, sale, lease, etc., it will be binding on him first to inform his lambardars co- sharers (lambardaran sharikdaran) and to sell or mortgage it to them at the price fixed. If, without giving any information to the lambardars, or, in case they offer the fixed price, he will transfer it to others, the transfer will by no means be valid.