KARIMULLAH Vs. ATMA RAM

JUDGEMENT

(1.) THIS and the connected Second Appeal No. 1387 of 1920 arias oat of two suits for pre-emption on the basis of two separate sale-deeds. It appears that in 1872 one Dal chand was the owner of the entire mahal in which the property in dispute is situated. At the time of the Settlement which took place in that year there, Dal Chand got a recital in the wajib-ul-arz of the northern mahal, in which the property in dispute is situated, recorded to the effect that whatever hail been recorded by Janki Prasad, the sole proprietor in his western mahal, should be followed in this mahal also. A reference to the wajib-ul-arz of the northern mahal shows that it had a statement recorded to the following effect: At present I am the sole proprietor in the mahal. I have full power to transfer my property to whomsoever I like. In case the conditions change and there is plurality of co-sharers, then if any so sharer wishes to sell his share he will first offer to his own brothers and in case of their refusal to other co-sharers and if the latter do not purchase than to whomsoever he likes.

(2.) AFTER the death of Dal Chand his property was inherited by his four sons. About the year 1913 or 1914, Atma Ram, the present plaintiff, purchased half the property from two of the sons of Dal Chand. It was in November 1919 that the defendant purchased the shares of the other two sons of Dal Chand, The only evidence in support of the custom which the plaintiff adduced in the Court of first instance was an extract from the wajib-ul-arz of 1872. The Court of first instance was of opinion that, inasmuch as at the time when the wajib-ul-arz of 1872 was drawn up, there was a single proprietor, there could possibly be no custom of pre- emption. It accordingly dismissed the suit. On appeal in the lower Appellate Court both the suits were decreed. The defendants have come up in second appeal, and on their behalf it is contended tint the finding of the lower Appellate Court as Co the existence of the alleged custom is not correct. In our opinion both these appeals must prevail. The entry in the wajib-ul-arz of 1872 on the face of it, makes it clear that at that time there could possibly be no custom and that all that was recorded was a statement by the sole owner, Dal Chand. Even if any custom had existed before 1372, is must be taken to have come to an end as soon as the entire mahal became vested in a single proprietor. There is no evidence whatsoever on the record that since the year 1872 there has been any occasion for the alleged custom to have grown up. We fail to see how the learned District Judge was able to distinguish the present cases from the case of Kamar-un-nissa Bibi V/s. Sughra Bibi 40 Ind. Cas. 427 : 15 A.L.J. 42 : 39 A. 480, or how he found it possible to infer that the entry in the wajib-ul-arz clearly proves the existence of the alleged custom. In our opinion both these appeals must be decreed. We accordingly allow these appeals, set aside the decrees of the lower Appellate Court and restore those of the Court of first instance with costs, including in this Court fees on the higher scale.