Ajudhia Prashad and Another vs Jodha Singh and Another

Karmat Husain, J.—This was a suit for preemption on the basis of two wajib-ul-arzes one of 1864 and the other of 1884-5. The Court of first instance decreed the claim on the ground that the wajib-ul-arz recorded the custom of pre-emption. The lower appellate Court reversed the decree of the first Court coming to the conclusion that the wajib-ul-arz was the record of a contract of pre-emption. The reasoning which has led the lower appellate Court to this conclusion is that in the earlier wajib-ul-arz there are only two classes of pre-emptors: Karibi rishtadar and 2 hisadaran digar potti while in the latter there are four classes: (1) hisadaran karibi ekjaddi (2), nazdiki khandan (3), hissadar thok and (4) hisadar deh. That Court, on the authority of Gobind Ram v. Masihullah Khan 29 A. 295 : 4 A.L.J. 137 : A.W.N (1909) 39, has held that the alteration shows that the custom of 1864 has not continued in force but has been abrogated by a contract.

The plaintiffs prefer a second appeal to this Court and it is contended on their behalf that the lower appellate Court is wrong in finding that there is no custom of pre-emption and that the modification of the wajib-ul-arz of 1864 does not show that a custom was replaced by a contract. The learned Counsel for the appellants in support of his second plea relies on the case reported in the case of Gokal Dichhit v. Maheshri Dichhit C.W.N. (1905) 266. I am of opinion that the conclusion arrived at by the lower appellate Court is right. The variation in the wajib-ul-arz of 1884-85 indicates that it records a contract and not a custom. The pre-emptive clause in that wajib-ul-arz contains the expression "Rewaj haq shufa" which has been translated by this Court as a currency of the practice of pre-emption" see Kanchan Singh v. Mani Ram 7 A.L.J. 213 : 5 Ind. Cas. 212 which follows a former ruling of this Court as reported in Tasadduq Husain Khan v. Ali Husain Khan C.W.N. (1908) 121 : 5 A.L.J. 470. The above expression shows that the wajib-ul-arz does not record a custom.

The result is that the appeal fails and is dismissed with costs which in this Court will include fees on the higher scale.