LALTA PRASAD CHAUDHRY Vs. GOKUL PRASAD

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-emption. The plaintiff is a co-sharer in the same patti with the vendor but the patti was created by imperfect partition and in more recent years, There seems to be no dispute that a custom of pre- emption prevails in the village. The entry in the wajib-ul-arz of 1860 gives the first right to hissadar Karibi, and both Courts were of opinion that this meant that the co-sharer in the same sub-division as the vendor would have a preference over a co-sharer in another sub-division. The Court of first instance decreed the plaintiff s claim. The lower Appellate Court reversed the decision of the Court of first instance solely on the ground that the plaintiff s being in the same patti as the vendor was due to imperfect partition. It referred to a case reported as Mahadeo Prashad Sahu v. Jaipal Raut 8 Ind. Cas. 867. We do not agree with the decision in this case. It seems to us that where a custom is proved, if the plaintiff can show that he comes within the custom at the time of the sale, he is entitled to the benefit of the custom. The mere fact that he was not within the custom prior to partition does not prevent him from subsequently acquiring the right. For example, it can hardly be said that if a co-sharer acquired a share in a patti by sale, he would not have the right of a co-sharer in that patti upon a sale subsequently made by one of the co-sharers. The right which the plaintiff acquired by imperfect partition was just as binding upon the co-sharers as if he had acquired the right by sale. We must 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 all Courts.