Sabir Ali and Others vs Yad Ram and Others

John Edge, Kt., C.J.—I think this case is governed by Guneshee Lal v. Zaraut Ali N.W P. H. C. Rep. 1870. This case will have to he remanded u/s 562. The appeal is allowed.

Straight, J

I agree with the learned Chief Justice that the Judge and the Subordinate Judge were in error in dismissing the plaintiffs'' claim preferred on the basis of the light of pre-emption, on the ground that, under the terms of the wajib-ul-arz, they had no such right. Looking to the language of that document, and more particularly to the clause that "in case of dispute as to price, it will he settled by appointment of arbitrators before the hakim, and that if the co-sharers do not take at the amount fixed by the arbitrators, then he may transfer it to a stranger," I agree with the learned Chief Justice that the case of Guneshee Lal v. Zaraut Ali N.-W H. C. Rep. 1870 is directly applicable, and from the language of the wajib-ul-arz before us, it is reasonable to infer that a mere co-sharer is entitled to the refusal after own brothers and co-sharers ek jaddi, and to have the preference over strangers. As we are informed that all the necessary evidence is on the record, the proper course, therefore, is to reverse the Judge''s decree, he having disposed of the case on a preliminary point, and to direct him to restore the appeal to his file of pending appeals and determine the questions of fact between the parties. Costs to abide the event.