DEONATH SINGH Vs. TILAKDHARI SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption. On a previous occasion DeoriSingh for himself and acting as guardian for his nephew Udai Narain Singh transferred a share in this same village to the present vendees, Tilakdhari Singh and Amrat Singh. The Plaintiff No. 1 and the father of the Plaintiffs Nos. 2 and 3 brought a suit for pre-emption and obtained a decree. In that suit it was found against the vendees that there was a custom of pre-emption in this village under which the vendors were bound to make the offer to the co-sharers in the first instance. About the same time the minor Udai Narain Singh through another next friend, brought a suit for cancellation of the sale-deed on the ground of want of legal necessity. The decree in the suit was a conditional decree and the document was to be set aside on payment of a part of the sale consideration. The property having gone back to the family the same has now been sold by Deoraj Singh and Udai Narain Singh who is now a major, in favour of the same vendees. The Courts below have held that the finding in the previous suit between the parties does not operate as res judicata. They have held that in view of the interpretation now put on wajib-ul-arzes of a similar nature by a recent Full Bench of this Court the evidence is not sufficient to establish the custom.

(2.) In our opinion the finding in the previous suit being inter partes must bind the present defendants. The question of the existence or non-existence of a custom of pre emption is not a pure question; of law put is a mixed question of law and fact which depends on evidence which may be oral or documentary. If a finding is once arrived at that ought to bind the parties to that litigation, of course it would be open to either party at a subsequent stage to show that the custom has ceased to exist or has in any other way been abandoned.

(3.) The learned advocate for the respondents has argued before us that inasmuch as Udai Narain Singh was a minor on the previous occasion the vendors are not the same. With this contention I do not agree. In the pre-emption suit Udai Narain Singh was impleaded under the guardianship of a parson who was appointed by the Court, and he was bound by the finding arrived at in that litigation. Next the defendants vendees claimed to derive title through Udai Narain Singh on the previous occasion and they claimed to do the same on this occasion. It is therefore difficult to hold that they are defending this case on a title derived from a different person. I am therefore of opinion that the finding in the previous suit as between Plaintiff No. 2, Deonath Singh, and the two vendees is res judicata. There is no evidence to show that this custom has fallen into disuse. The learned advocate for the respondents has drawn our attention to the fact that after the institution of the suit the recent pronouncement of a Pull Bench in Randhir Singh V/s. Rajpal Miser AIR 1934 All 321 has thrown a doubt on the previous view. That case, however did not come from this particular village and there is nothing to show that the decision of the Pull Bench became known to the co-sharers and they put an end to the custom in this village before the decree was passed by the first Court.