CHHATRADHARI AHIR Vs. UTTAM CHAND

JUDGEMENT

(1.) This is an appeal, by the defendants against an order of the learned Additional Civil Judge in appeal by which he remanded the case to the Court of first instance for fresh hearing and decision according to law and according to the directions given by him.

(2.) The relevant facts necessary for the disposal of this appeal are these. The plaintiff respondent filed a suit for pre-emption in respect of a sale deed dated 26 July 1913, for a share in village Nasirpur. The suit was contested, inter alia, on the ground that there was no custom of pre-emption in the village in question. The Court of first instance took up this issue, which was issue 10 in the suit, as the first issue in the case. In proof of the existence of a custom of pre-emption the plaintiff relied on a document characterised as "kafiyat-hal" (EX. 1), which appears to have been prepared during the settlement operations in the year 1860 A.D. On behalf of the defendants, however, reliance was placed on the entries of the wajib- ul-arz of the village of 1860, which is Ex. A.3. Along with this defendants also filed an extract from the wajib-ul-arz of 1833 A.D., Ex. A 2. On a consideration of these pieces of evidence, particularly in the light of Section 5 of the Agra Pre-emption Act, the learned Munsif came to the conclusion that no right or custom of pre- emption in the village was established. In view of this finding the suit was dismissed with costs.

(3.) On appeal, the learned Additional Civil Judge, first of all, recorded his opinion that the entries in the wajib-ul-arz of 1860 clearly recognised the existence of a custom of pre-emption in the village. In the second place, the learned Judge treated the "kafiyat-hal" (EX. 1) as a "robkar" prepared at the time of the settlement, and, on a consideration of the entries of the so-called robkar, he came to the conclusion that a custom of pre-emption prevailed in the locality in which this village was situate. Apparently the learned Judge Was not satisfied with this finding of his, and he allowed the plaintiff appellant to adduce some further documents as additional evidence of the fact that the custom of pre-emption prevailed in the villages surrounding village Nasirpur. Finally the learned Judge expressed himself thus; In order therefore to determine it (custom of pre-emption) exactly it would be necessary to look into wajib-ul-arz of surrounding villages. Then he remanded the case to the Court of first instance for determining the exact custom of pre-emptiou in the surrounding villages after taking such further oral and documentary evidence as parties might like to give and for fresh finding and decision in the light of the above remarks.