RAM RACHHA TEWARI Vs. GIRJA DAT PANDE

JUDGEMENT

(1.) This pre-emption appeal is up for admission under Order 41, Rule 11. The question in the Courts below was whether the plaintiff had a right of pre-emption under Section 5, Agra Pre-emption Act. It was pleaded by way of defence that there was no such right inasmuch as no custom recognizing pre-emption had been recorded in respect of the area in which the property sold was situate.

(2.) The first Court held in favour of this defence. The lower appellate Court held that there was a record of custom and that the plaintiff held a right under Section 5, Agra Pre-emption Act.

(3.) It appears that the lands in dispute are included in a very large mauza called Dhimsa in the Gorakhpur district. This mauza contains a number of tolas, and it is said that the lands with which we are concerned are situated in a tola named Bharpur. The case for the defence is that this tola Bharpur is a 16 annas unit and that as no record of rights is shown to have been prepared in respect of it-a record showing the prevalence of a custom of pre-emption-therefore, the plaintiff was out of Court.