Durga Pershad vs Hazari Lal and Others

Aikman, J.—The sole question for decision in this appeal, which arises out of a suit for pre-emption, is whether the clause in the Wajib-ul-arz upon, which the plaintiff''s claim to pre-empt is based, is, as held by the Court of first instance, the record of a custom or, as held by the lower appellate Court, the record of a contract. After carefully considering the terms of Clause 8 of the Wajib-ul-arz, which contains the passage relied on, I think the interpretation put upon it by the first Court is right. In that passage the co-sharers say ''for the future we wish to continue the custom of pre-emption. The words in the vernacular are ainda jari rakhna riwaj shufa ka humko manzur hai". I think the only inference to be drawn from, these words is that there was in existence a custom of pre-emption which the co-sharers wished to continue to prevail just as they might have agreed amongst themselves to abrogate it by covenanting not to enforce it in future. The mere statement in the clause that up to that time there had been no suit for pre-emption instituted and decided does not show that no claim of pre-emption had been made and allowed. The case relied on by the learned Subordinate Judge is clearly distinguishable from the present. I allow the appeal and setting" aside the decree of the Court below restore that of the Court of first instance. The appellant will have his costs here and in Court below.