SULTAN Vs. MASITU

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for pre-emption. Various pleas were taken by the defendant but they were all overruled and the suit has been decreed. The plaintiffs allegation that the sale consideration mentioned in the sale- deed was inflated has however not been accepted and there is no cross-objection.

(2.) The first plea was that there was no custom of pre-emption in this village at all. In support of the alleged custom of pre-emption the plaintiff relied on an entry in the wajib-ul-arz of the year 1863 as well as an extract from the wajib ul-arz of the year 1325 F. and two judgments. There was no evidence to the contrary. The entry in the first wajib-ul-arz of 1863 was undoubtedly a prima facie evidence of the existence of a custom. The only point urged against this presumption is that it contains the two expressions "in future" and a provision for reference to arbitration in the case of a dispute as to price. We are of opinion that these two circumstances cannot possibly destroy the presumption of the existence of a custom which arises from this entry. In the case of Digambar Singh V/s. Ahmed Sayed Khan AIR 1914 PC 11 their Lordships of the Privy Council had before them a wajib-ul-arz which contained both the expressions "in future" and a provision for reference to arbitration. Nevertheless their Lordships were inclined to hold that record was a record of custom. There is therefore, no force in this contention. This evidence is further strengthened by the entry in the wajib-ul-arz of 1325F. to the effect that the co-sharers were agreed that they will be bound by the customs which were recorded at the time of the Settlement of 1863. Although the two judgments relied upon relate perhaps to mahals other than the mahal in suit and, therefore, are not of much value, they do all the same relate to the same village for which the wajib-ul-arz must have been prepared in 1863. On the whole we are satisfied that there is no good ground for differing from the view taken by the Court below that a custom of pre-emption exists in this mahal. In fact even if the agreement recorded in the wajib-ul-arz of 1325F be taken as a mere contract, it is still subsisting.

(3.) The second point raised is that the defendant is a co sharer in the same patti in which the property sold is situated. The constitution of this village is a curious one and "patti Murdha" instead of being a part of a mahal itself comprises more than one mahal At the time of the institution of the suit, the defendants-vendees were co-sharers in "patti Murdha" but not in mahal Haidar Sahai in which the property sold was situated. They were accordingly not on the same footing with the plaintiffs, but were strangers to the mahal, and could not defeat their right of preemption.