Hari Singh vs Harbans Lal on 5 January, 1923

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Allahabad High Court
Hari Singh vs Harbans Lal on 5 January, 1923
Equivalent citations: 72 Ind Cas 491
Bench: Rafique, Piggott


1. These three second appeals arise out of three suits for pre-emption brought in respect of three separate transfers. The first question before the Courts below was, whether or not a custom of preemption existed in the villages in which the property is situate. Both the Courts below have found that no such custom is proved to exist and consequently the suits of the plaintiff have been dismissed.

2. It has been argued before its that the decision of the Courts below on the question of the existence of custom is erroneous and we have been referred by the earned Counsel to a Full Bench ruling reported in Returaji Dubain v. Pahalwan Bhagat 7 Ind. Cas. 680 : 7 A.L.J. 1040 : 33 A. 196 (F.B.). The full wajib-ul-arz was before the Court of first instance and the learned Munsif has quoted from the preamble of this wajib-ul-arz the following words:

The agreement between us proprietors and Lambardar is that so long as this Settlement lasts the following conditions shall be binding on us.

3. It may be conceded that, in view of the Full Bench ruling just referred to, a wajib-ul-arz, prima facie, is to be construed as embodying a record of custom, but it is quite clear that this presumption must give way if the language of the document itself indicates that the record is not one of custom but of contract. While it may be the case that the word “iqrar” which is often interpreted “agreement” is an ambiguous word we have in. the present case to take notice of the words “so long as this Settlement lasts the following conditions shall be binding on us.” These words appear to us clearly to indicate that whatever usages were recorded in this document were recorded as usages of contract and not of custom, We think the first Court was justified in relying on the case of Asa Ram v. Kanhaya 6 Ind. Cas. 129 : 7 A.L.J. 365 : 32 A. 399, where the introduction to the wajib-ul-arz was couched in similar language. We can find nothing in the Full Bench ruling above referred to which contradicts anything which is set out in the judgment at Volume VII of the Allahabad Law Journal Reports page 365 Asa Ram v. Kanhaya 6 Ind. Cas. 129 : 7 A.L.J. 365 : 32 A. 399.

4. We think, therefore, that both the Courts below were justified in holding that this wajib-ul-arz, which was an important document in the case, did not prove the existence of the custom of pre-emption. The plaintiff might, of course, have produced evidence to show that a custom really did exist notwithstanding what is set out in the wajib-ul-arz but both the Courts are agreed that the evidence of the two witnesses whom he put forward was of no value at all. This being so, we hold that the decision of the Court below in all three cases is correct. We dismiss these appeals under Order XII, Rule 11.

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