MAHABIR SINGH Vs. SUBA SINGH

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-emption. The facts are that as far back as the 3rd of June, 1909, there was a mortgage by way of conditional sale. The decree absolute was made on the 13th of June, 1914. Possession was given on the 26th of February, 1915. The present suit was instituted on the 5th of October, 1915. The plaintiff alleged his cause of action to have arisen, not at the date of the original transfer, but on the date at which possession was given under the decree absolute. The custom as proved by the entry in the wajib-ul-arz refers to transfers (intiqal) and provides that, the first offer must be made as therein set forth. There is no reference in the entry to any right of pre-emption upon the order of the court for making a decree absolute or granting possession. The question in the court below was when did the plaintiff s cause of action, if any, arise. The court of first instance held that the cause of action, if any, arose on the 3rd of June, 1909, the date of the transfer, and that the suit was barred by limitation. The lower appellate court thought otherwise. The defendant comes here in second appeal. It is contended that there was no right to get possession as the result of the decree absolute or the order for possession of the court and that the plaintiff s right, if any, accrued at the time of the original transfer, that is, in 1909. It is contended on behalf of the respondent that this plea is not open because in the court below the right of pre-emption was admitted. It seems to us that what was admitted in the court below was that there was a right of preemption as recorded in the wajib- ul-arz and that this custom had reference to voluntary transfers by co-sharers, and that if the plaintiff s rights were under this custom, his suit was clearly barred. In our opinion it cannot be contended for one moment that the defendant admitted in the court below that there existed a right of pre-emption by reason of the fact that there had been an order absolute in a foreclosure suit and an order for possession following thereon. The last paragraph but one of the judgement of the lower appellate court clearly shows that the defendant s "pleader in that court never intended to make any such admission. We think that the only custom which was proved in the present case was the custom recorded in the wajib-ul-arz. The plaintiff s right therefore, if any, arose in 1909, and the suit ought to have been brought within one year from that date. We allow the appeal, set aside the decree of the lower appellate court, and restore the decree of the court of first instance with costs in this Court and in the court below.