Kallu and Another vs Kallu Singh and Others

The learned Additional Judge says: "The copy of a wajtb-ul-arz filed by the plaintiff shows that there is a custom of pre-emption in the village Dullakberi. The ruling reported as Kanwar Digombar Singh v Eartwar Ahmed Sayeed Ehan 28 Ind. Cas. 34 : 13 A.L.J. 236 : 19 C.W.N. 393 : 17 M.L.T. 193 : 37 A. 129 : 28 M.L.J. 556 : 2 L.W. 303 : goes to show that the wajib-ul-arz is a prima ftcie evidence of custom and it requires no other evidence to corroborate it." There is no doubt that the extract from a wajib-ul-arz recording a custom of preemption is prima facie evidence of the existence of the custom, and it is quite true that their Lordships of the Privy Council in the case referred to say that it is unnecessary for the plaintiff to give instances in support of the entry, This does not, however, mean that the defendant, is not entitled to give evidence to show that no custom prevails in a case in which the plaintiff has prima facie proved his ease by the production of an extract from the wagib-ul-arz. In our opinion the defendant is entitled to give evidence; and if he can show that there have been a number of sales to strangers, the Court is bound to take this evidence into consideration together with the rest of the evidence in making up its min whether or not a custom of pre-emption exists. We have read the judgment of the first Court and that judgment read in conjunction with the judgment of the lower Appellate Court seems to us to show that the decree was correct. We, therefore, dismiss the appeal.