Jawahir Singh vs Jahan Singh And Ors. on 18 March, 1926

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Allahabad High Court
Jawahir Singh vs Jahan Singh And Ors. on 18 March, 1926
Equivalent citations: 95 Ind Cas 106
Bench: Sulaiman, P C Banerji


1. This is a plaintiffs appeal arising oat of a suit for preemption. In support of his allegation that a custom of preemption exists in the village, the plaintiff produced the wajib-ul-arz of 1279′ Fasli. The defendants produced the wajib-ul-arz of 1262 Fasli and a dustur dehi of the year 1307 Fasli. Both the Courts below have dismissed the claim holding that the custom has not been proved. The lower Appellate Court concedes that there is no material variation between the entries as regards the right of pre-emption contained in the wajib-ul-arz of 1279 and 1262 Faslis. The lower Appellate Court has also found in favour of the plaintiff that there is no fixed rate for sale or mortgage laid down by the wajib-ul-arz of 1262 Fasli, The reference to the rates was merely by way of a suggestion which the transferors and the transferees might, or might not act upon. The lower Appellate Court, however, has rejected this evidence as not proving the custom, because of the preamble in the wajib-ul-arz of 1262 Fasli, which stated that the agreement between the lambardar and the pattidars was that so long as the settlement lasted, the conditions laid down therein would be binding for all the village transactions. It has relied on the case of Hari Singh v. Harbans Lal 72 Ind. Cas. 491 : A. L. R. 1923 All. 488,

2. We are of opinion that the appeal must be allowed. When the plaintiff produced the wajib-ul-arz of 1279 Fasli which contained clearly a recital of the custom of pre-emption, the presumption was in his favour. The entry must be presumed to be a record of custom unless the contrary is established Digambar Singh v. Ahmed Sayeed Khan 28 Ind. Cas. 34 : 37 A. 129 : 13 A. L. J. 236 : 19 C. W. N. 393 : 17 M. L. T. 193 : 2 L. W. 303 : 21 C. L. J. 237 : 28 M. L. J. 556 : 17 Bom. L. R. 393 : (1915) M. W. N. 581 : 42 I. A, 10 (P. C.), The defendants, however, tried to rebut the presumption by producing the wajib-ul-arz of 1262 Fasli. That wajib-ul-arz contains a similar clause. The defendants, however, wanted to show that in view of the preamble that entry cannot possibly be a record of custom, and, therefore, no custom exists. The point becomes abundantly clear when we bear in mind the fact that the forma issued to the Settlement Officers in pursuance of the direction of the Board in the North Western Provinces (Page 76, Paragraph 167) issued in 1858, were of a stereotyped form requiring the officers to record the entry of the agreement regarding pre-emption of sharps. We accordingly find that in sail wajib-ul-arzes prepared in pursuance of this circular the word ‘agreement’ invariably occurs. There is nothing particular in the preamble which says that the co-sharers agreed to be bound by the conditions during the period of the settlement. This point is covered by the view of the Full Bench recorded in Rituraji Dubain v. Pahalwan Bhagat 7 Ind. Cas, 680 : 33 A. 196 : 7 A. L. J. 1040,

3. The case referred to by the lower Appellate Court can be distinguished on two grounds. In the first place, it is not clear whether the wajib-ul-arz in question was prepared in pursuance of the circular of 1858. If it was prepared in pursuance of some subsequent circular which required the Settlement Officer to record the custom, then the fact that the officer used the word agreement instead of custom may be of greater importance. In the next place the present case is a much stronger one. We have not only the wajib-ul-arz of 1262 Fasli, but we have a subsequent wajib-ul-arz of, 1279 Fasli which has stood all along. We may further point out that the mere circumstance that there is no entry of the righ of pre-emption in the dustur dehi for 1307 Fasli is of no importance, as under the circulars issued by the Board in 1897, Settle-meat Officers were not called upon to make a note of customs of pre-emption either in the wajib-ul-arz or in the memorandum of village customs, We are accordingly of opinion that the view taken by the lower Appellate Court is not correct.

4. No other point now remains to be decided. We accordingly allow this appeal and. setting aside the decrees of the Courts below, decree the plaintiff’s claim for pre-emption on payment of Rs. 700 in the-Court below, within two months from this date. In case the amount is paid, “the plaintiff will be entitled to have his costs against the defendants in all Courts, including in this Court fees on the higher scale. In case of default of payment the suit shall stand dismissed, with costs in all Courts, including in this Court fees on the higher scale.

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