Shyam Lal vs Dwarka Prasad and Others

This is a pre-emption appeal. The suit was brought by the appellant and professed to be a suit under the Agra Pre-emption Act, 11 of 1922. The Courts below have dismissed the claim on the ground that no right of pre-emption exists in this village, and this decision is founded upon the interpretation of Section 5 of the Act, together with a construction of an extract from the wajib-ul-arz.

There was produced before the Courts below a wajib-ul-arz in which substantially the record was couched in the following language:

Up to the present time there has been no case of pre-emption in this village, but in the surrounding villages there is a custom of pre-emption by which, when one co-sharer wishes to sell his land, pre-emption is to be allowed in favour of...[Here follows the scheme of pre-emption.]

The Courts below were of opinion that this record did not satisfy the requirements of Section 5 of the Pre-emption Act. Section 5(1) says that the right of pre-emption shall be deemed to exist only in mahals or villages in respect of which any wajib-ul-arz prepared prior to the commencement of this Act records a custom, contract or declaration recognizing, conferring or declaring a right of pre-emption expressly or by necessary implication. We think on the proper construction of the language of this wajib-ul-arz, that it ought to be held that a custom of pre-emption is necessarily implied. We have just decided Second Appeal No. 550 of 1925 in which the wajib-ul-arz resembled very closely the language of the wajib-ul-arz now under consideration. The only difference between the two documents is that in the wajib-ul-arz which wa3 being dealt with in Second Appeal No. 550 there was added to the record the following words:

Aur yeh dastur hamko manzur hai

These words find no place in the wajib-ul-arz which we are considering. At the same time, it seems to us fairly obvious that it was the intention of the owners of this village to have a custom of pre-emption recorded, We are satisfied, therefore, that in respect of this village there is a wajib-ul-arz prepared prior to the commencement of the Agra Pre-emption Act, a wajib-ul-arz which records at least by necessary implication, the existence of a custom or contract. That being so the plaintiff was entitled to pre-empt. No other matters are now in dispute between the parties. The result, therefore, is that we allow the appeal and give the plaintiff a decree for pre-emption.