SHYAM LAL Vs. DWARKA PRASAD

JUDGEMENT

(1.) This is a pre-emption appeal. The suit was brought by the appellant and professed to be a suit under the Agra Pre-emption Act, 11 of 1922. The Courts below have dismissed the claim on the ground that no right of pre-emption exists in this village, and this decision is founded upon the interpretation of Section 5 of the Act, together with a construction of an extract from the wajib-ul-arz.

(2.) There was produced before the Courts below a wajib-ul-arz in which substantially the record was couched in the following language: Up to the present time there has been no case of pre-emption in this village, but in the surrounding villages there is a custom of pre-emption by which, when one co-sharer wishes to sell his land, pre-emption is to be allowed in favour of...[Here follows the scheme of pre-emption.]

(3.) The Courts below were of opinion that this record did not satisfy the requirements of Section 5 of the Pre-emption Act. Section 5(1) says that the right of pre-emption shall be deemed to exist only in mahals or villages in respect of which any wajib-ul-arz prepared prior to the commencement of this Act records a custom, contract or declaration recognizing, conferring or declaring a right of pre- emption expressly or by necessary implication. We think on the proper construction of the language of this wajib-ul-arz, that it ought to be held that a custom of pre-emption is necessarily implied. We have just decided Second Appeal No. 550 of 1925 in which the wajib-ul-arz resembled very closely the language of the wajib-ul-arz now under consideration. The only difference between the two documents is that in the wajib-ul-arz which wa3 being dealt with in Second Appeal No. 550 there was added to the record the following words: Aur yeh dastur hamko manzur hai