Sundar Singh and Others vs Jaisiri Rai

This appeal arises out of a suit for pre-emption. The Courts below decided the suit in the plaintiff''s favour. The vendee appealed. The only evidence adduced by the plaintiff in support of the alleged custom was an extract from the wajib-ul-arz of 1872. This entry As to the effect that in future the co sharers when selling must first offer the property to the other co-sharers; and the expression "ainda" in the clause is explained by a rukka, which is also on the record, by the Settlement Officer to the effect that when he used this word he meant that the particular custom had not been established. Some reference has been made to judgments, but upon sending for the records of these judgments we find that they were not pre-emption cases at all. There was also a judgment in another case and apparently from another village by the District Judge of Azamgarh. From the perusal of this judgment it appears that in that case there was not only an extract from the wajib-ul-arz of 1872 but there was an entry in an earlier wajib-ul-arz. The question in the present case is whether the entry in the wajib-ul-arz of 1872 under the circumstances of this case is sufficient to establish the custom, and in the absence of all other evidence we think it was not sufficient.

If an earlier wajib-ul-arz containing a reference to rights of pre-emption had been produced in the case it would have made all the difference. We must allow the appeal, set aside the decree of both the Courts below and dismiss the plaintiff''s suit with costs in all Courts.