1. This is a defendant's appeal against a judgment and decree of Mr. Gulal Chand Jain, Subordinate Judge First class, Delhi, dated the 27th of February 1948 decreeing the plaintiff's suit for possession by preemption.
2. On the 20th April 1943, Mst. Phooli and two others sold to defendant No. 1 Sheikh Abdul Karim a plot of land measuring about 1,000 sq. yards on which there were standing some kacha huts situate in Sabzi Mandi near Barafkhana, Delhi City, for a sum of Rs. 40,000/-. This deed was registered on the 29th of April 1943, and, on the 29th of April 1944, the plaintiff Shib Narain brought a suit for pre-emption alleging that the custom of preemption prevailed in Sabzi Mandi and claimed pre-emption on the ground of vicinage. The defendant denied that there was any custom of pre-emption and also the right of the plaintiff to pre-empt the sale, and he also pleaded that the land was situate in Mauza Jahan Numa where, there was no custom of pre-emption. The price paid for the property sold was also disputed, but it is not necessary to go into that matter as the question has not been raised before us. The learned trial Judge decreed the plaintiff's suit holding that the custom of pre-emption prevails in Sabzi Mandi, but in regard to where the property is situate, whether in Sabzi Mandi or in Mauza Jahan Numa, the finding does not seem to be quite dear.
3. The two points which have been argued by counsel for the appellant are, (1) that the land in dispute is situate in Mauza Jahan Numa where no custom of pre-emption prevails and (2) that no custom of pre-emption has been proved to exist in Sabzi Mandi.
4. The land in dispute is described in thesale deed at page 91 of the printed paper bookto be situate in Sabzi Mandi near Barafkhana.No other particulars of this land are given.Neither the 'khata' nor the 'Khasra' numbersare given, and its description is given by itsboundaries which are printed at page 94 ofthe paper book. In support of his contentionthat the land in dispute is situate in MauzaJahan Numa Mr. Bishan Narain has reliedupon certain pieces of evidence. (His Lordshipthen referred to oral evidence of D. Ws. andconcluded as follows:) On this evidence, Iam unable to hold that the land in disputeis situate in Mauza Jahan Numa and I musttherefore repel the contention of counsel forthe appellant on this point.
5. The next question which arises is as to whether the custom of pre-emption has been proved to exist in Sabzi Mandi. The property in dispute is urban immovable property and therefore in order to succeed the plaintiff had to show that the custom of pre-emption prevails in this sub-division of the town. The plaintiff produced copies of certain decrees and judgment in support of his case.
6. The first is Ex. P. 2-A which is a copy of the decree dated the 28th March 1907 in regard to possession by pre-emption of a house in Sabzi Mandi. The only criticism of thispiece of evidence by the appellant is that the judgment on which the decree is based has not been produced. That may be so, but it does show that as long ago as 1907 a claim was made of the existence of this custom and the suit was decreed.
7. The next piece of evidence is Ex. P. 3, a copy of the decree of the 10th February 1916 printed at page 64 of the paper book. This is also a decree showing a successful claim by a plaintiff for the pre-emption of a house in Sabzi Mandi.
8. The next two pieces of evidence are Ex. P. 4, a compromise decree of June 1916, and Ex. P. 5, a compromise decree of December 1917. It is true that these are compromise decrees, and as pointed out by Sir Shadi Lal, in 'Imperial Oil Soap and General Mills Co. Ltd. v. Misbahud-Din', 2 Lah, 83, there can be little doubt
'that a Judgment based upon a compromise or confession cannot be placed on the same footing as that in which after contest a custom was held to be proved or negatived'
yet it cannot be said that these documents are of no value whatsoever. These documents do show the assertion of the right to pre-empt and acceptance of the same by the defendant --whatever be the reasons for such acceptance.
9. The next piece of evidence relied upon by the plaintiff is Ex. P. 6, a judgment passed on the 30th April 1923 by Mr. Pribhu Dayal Sharma, Subordinate Judge 2nd Class, decreeing a claim for pre-emption. The property in dispute in that case was situate in Sabzi Mandi. It was held in that case that the custom prevailed throughout Sabzi Mandi. Seven instances were relied upon in that case of which four are the ones which were relied upon in this case also, i.e.. Exs. P. 3, P. 4, P. 5, and P. 2A.
10. Ex, P. 7 printed at page 79 of the paper book is another decided case where custom of pre-emption was held to have been proved in Muqumpura in Sabzi Mandi, It was held in that case that Muqimpura is a minor sub-division of the main sub-division Sabzi Mandi. Nine instances of Sabzi Mandi were relied upon in this judgment. It is not quite clear which instances those were, but the fact remains that there were as many as nine instances in support of the custom of pre-emption in Sabzi Mandi.
11. As against this the defendant has proved 11 instances relating to several parts which now constitute portion of Delhi.
12. The first one is Exhibit D. 8, printed at page 104 of the printed paper book. This is a copy of the judgment of Pandit Bhaskar Das, Extra Assistant Commissioner Delhi, dated the 7th June 1873. This was with regard to a suit for possession by pre-emption of a shop and cancellation of sale deed. The 5th issue in that case was 'whether the custom of pre-emption exists in Sabzi Mandi or not?' It was held that such a custom did not prevail as no proof in support of it had been given. The allegation of the plaintiff was that Sabzi Mandi was formed out of the revenue estate of Sadhaura. But the Wajib-ul-arz showed that the abadis of Sabzi Mandi' and Muqimpura were parts of the village Sadhaura, but the right of pre-emption was the same as in towns. The case was decided against the plaintiff on the ground that he had not proved the existence of custom. It may be noted that this was a case under Section 12 of the Punjab Laws Act. An appeal was taken to the Commissioner against this judgment, but it was dismissed. This may be an instance against the existence of custom in the year 1873, but the evidentiary value of this instance is precious little as the case seems to have been fought out as if it was village immovable property and no attempt was made to prove that custom existed in the locality if it was, us indeed it was, a town.
13. The next instance relied upon by the defendant was a judgment, Exh. D. 17, dated the 24th June 1886 where the suit for possession by pre-emption of a garden situate in Mauza Jahan Numa, which was sold by Lal Singh and Kishan Singh to Baij Nath, was dismissed. The property in dispute as shown in the decree-sheet was in Mauza Jahan Numa which, as I have held above, has not been proved to be the same thing as Sabzi Mandi. At any rate, the property in dispute is not situate in this Mauza. This instance is, in my opinion, of no value in deciding the present case. This case was taken to the Chief Court and the judgment of that Court is reported in 'Ankar Lal v. Baij Nath', 103 P. R. 1889. It was held:
'that Jahannuma was not a village community, and that no presumption could be made as to the existence of a custom of pre-emption therein under Sections 10 and 12, as those sections contemplate not any mere area known by a local name and separately measured; but a property owned by a village community holding on either a Zamindarie, Pattidari or Bhaiyachara tenure, and that consequently the plaintiff was not a landholder under Section 12.'
This instance, therefore, is of no assistance in deciding the present case.
14. The next instance is Ex. D. 21, a judgment, dated the 6th November 1895, and relates to Mughalpura. It was held in this case that the abadi of Mauza Mughalpura was in Jahan Numa and the 'abadi' of Sabzi Mandi in Saudhara Kalan and that in Mauza Jahan Numa there were different abadis and custom of pre-emption prevailed in the abadis of Pahari Dhiraj and Teliwara but not in other abadis, e.g., Pul Bhaman (Sic) Mughslpura etc. An appeal was taken in this case to the Divisional Judge who affirmed the decree. As this instance also relates to Mauza Jahan Numa, it is in my opinion of very little assistance.
15. Another instance relates to sale of land in Sunnarwali. The suit for possession by pre-emptor was dismissed and appeals to the Divisional Judge as well as to the Chief Court were also dismissed. The judgment of the Chief Court is reported in 'Karam Ilahi v. Babu Mal', 170 Pun. L. R. 1900. It was held in that case by the Chief Court that Mauza Jahan Numa was 'veeraan' (deserted) and no custom of pre-emption was proved to be in existence there. This instance again is of no assistance in deciding the question whether custom prevails in Sabzi Mandi.
16. Ex. D. 23, a judgment of the Divisional Judge at Delhi, dated the 27th November 1900 is another instance relied upon by the defendant. It is printed at page 135 of the printed paper book. The suit was for possession of 'muafi' land and share of a wellsituate in Sadhaura Kalan. It appears that the finding was that the property was situate within the revenue estate of Mauza Jahan Numa where the custom of pre-emption was held not to be in existence. As this was an instance of property of Mauza Jahan Numa, it can be of very little use to the defendant.
17. Exs. D. 26 and 27 relate to a suit for pre-emption in regard to land outside Farash Khana or inside Mauza Khandrat Kalan. It is not quite clear where this land was, but it was held that there was no custom of preemption in Mauza Jahan Numa.
18. Another instance is Ex. D. 28 at p. 157 of the printed paper book which is a judgment of Mr. Abdul Haq, Senior Subordinate Judge, Delhi, and relates to land in Malkaganj which it was alleged was in Sabzi Mandi. It was held that the abadi of Malakaganj was not part of the 'abadi' of the city or even of Sabzi Mandi but of Patti Chandrawal, find although six instances were produced in support of custom of pre-emption in Sabzi Mandi, it was held in that case that custom was not established in Malakaganj because it was outside Sabzi Mandi. It is significant that six instances of the existence of custom in Sabzi Mandi were produced in that case and of these Nos. 4 and 6 printed at page 161 of the printed paper book seem to be instances which have not been produced in the present case.
19. The next instance relied upon is a judgment Ex. D. 29 printed at page 166 dated the 11th June 1929. Here also the property in dispute was situated outside the walls of Delhi in an estate which was formerly known as Jahan Numa a village which formed part of the privy purse of the Emperors of Delhi and different sections of it had different names, and custom of pre-emption prevailed only in Pahari Dhiraj, Telivyara and Shadipura. An appeal was taken against this judgment but was dismissed. As an instance in the present case it is not of much use as it relates to some property in Jahan Numa.
20. The next instance is Ex. D. 3 at p. 186 of the printed paper book, a plaint dated the 18th May 1933 relating to a house in Sabzi Mandi. The suit was withdrawn and dismissed. This is not of much assistance because the dismissal of a suit need not necessarily be on the ground that no custom of pre-emption prevailed. No evidence has been produced to show as to why this suit was dismissed.
20a. In the next instance, Exh. D. 32 dated the 31st March 1939, the claim was with regard to pre-emption of some property situate in Mauza Khandrat Kalan forming part of Paharganj.
21. In the last instance the suit was brought for pre-emption which is evidenced by Ex. D. I, copy of a petition of plaint, dated the- 30th September 1945 at page 194 of the printed paper book. The defendant took the plea that no custom of pre-emption prevailed. There was a compromise and the suit was dismissed on the plaintiff getting his costs. This is certainly not an instance which supports the plea of the defendant. It is true that two witnesses D. W. 4. Qutab-ud-Din, and D. W. 5, one Iqbal Krishan an Advocate, were produced to explain the circumstances in which the compromise took place. D. W. 4 stated that he did not know why the compromise took place and D. W. 5, Mr. Iqbal Kilshan, stated that he hadadvised his clients to withdraw the suit as the property was in Jahan Numa. Whether it was there or not, it is not necessary to decide in this case because the mere withdrawal of the suit cannot he an instance of existence or non-existence of custom.
22. Finally, counsel drew attention to another document on the record Ex. D. 36 which is printed at page 218. This judgment relates to property in Kothi Shora in Sadhaura Kalan. In that case, the trial court had held that there was no custom in that locality, but this judgment was reversed on appeal, and it was held by this Court in 'Basheshar Nath v. Allah Dia', 53 Pun. L. R. 226 that custom of pre-emption prevailed in Sabzi Mandi and as Kothi Shora was an extension of Sabzi Mandi such a custom would prevail there also. Two objections were taken to this judgment of this Court, (1) that it was an 'ex parte' judgment and (2) that the rule laid down, with regard to proving of custom of pre-emption by showing that the locality was an extension of another locality of a town or sub-division where the custom of pre-emption prevailed, went counter to the rule laid down by Sir Shadi Lal in 'Imperial Oil Soap and General Mills Co. Ltd. v. Misbal-Ud-Din', 2 Lah. 83. It is not necessary to decide ths question whether, merely because by the extension of limits of a town certain localities come within its boundaries, the custom of pre-emption, if prevailing in the town, would also extend to the new locality. But there is a contrary opinion expressed by Sir Shadi Lal in the judgment I have referred to above which is of great weight and authority.
23. An 'ex parte' judgment of the High Court whether it is an instance of custom or opinion on a question of law does not become less valuable merely on the ground of the absence of a respondent.
24. A consideration of the evidence on the record shows that in support of the custom of pre-emption there are two decrees showing that suits for possession by pre-emption were decreed, two other decrees which are compromise decrees and two Judgments which show that custom, after contest, was held to prevail in Sabzi Mandi. Besides, the two judgments Exs. P. 6 and P. 7 rely on five other instances, three mentioned in Ex. P. 6 and two mentioned in Ex. P. 7. There is, besides, a Bench judgment of this court in which custom of pre-emption was hold to prevail in the whole of Sabzi Mandi. As against this, there are nine instances, one of the year 1873 which shows that custom was held not to be proved and eight are judgments in regard to properties in Mauza Jahan Numa which had not been shown as part of Sabzi Mandi. There are, besides these instances, two plaints which were filed but withdrawn and suits dismissed on that ground. These are of no value and in one of these the plaintiff got his costs.
25. On the material which has been placed ion the record of this case I am of the opinion that custom of pre-emption has been proved and the learned trial Judge rightly held it so.
26. I would, therefore, dismiss this appealand affirm the judgment and decree of thetrial Court with costs throughout.