Kishun Ahir and Others vs Saran Ahir and Another

Kanhaiya Lal, J.—We think the decision of the lower Court in this case is correct. It is a case to which the Preemption Act XI of 1922 applies. It appears that in the 1874 Settlement the village in which the property is situated formed part of a taluqa comprising a number of villages. It is true that a wajib-ul-arz was prepared at that Settlement in which it was stated that there was a custom of pre-emption, but there was also produced before the Court below a certified copy of a rubkar dated the 30th September, 1874, declaring that the entry relating to custom in this wajib-ul-arz was to be deemed to be incorrect as far as this mauza Jalalpur was concerned. It was stated clearly in this rubhar that there was in that village no custom of pre emption and that there would be no such custom in future.

We are of opinion that the Judge of the Court below construed Section 5 of the Preemption Act correctly. The wajib-ul-arz cannot be read detached from the rubhar which professes to correct it. The two documents must be construed together, and we are quite clear, this being done, there is no wajib-ul-arz of 1874 recording a custom of pre-emption.

It is further argued that even if this view be taken, there is nothing to exclude the idea that the parties who signed the wajib-ul-arz were entering into a contract for pre-emption. Here again we think the language of the rubhar is quite clear. It indicates to us that the parties concerned intended to have nothing whatever to do with the right of pre-emption whether by custom or by contract.

No other point arises for discussion.

We dismiss the appeal under Order 41, Rule 11.