Judgement

Appeal from a judgment and decree of the High Court (July 15, 1912) reversing a judgment and decree of the Subordinate Judge of Aligarh (March 28, 1911).

The suit was instituted by the appellant in 1910 against the respondent and on© Bhawani Das, claiming a right of pre-emption over certain land which had been sold by Bhawani Das to the respondent. Bhawani Das did not defend the suit and was not a party to the appeal.

The property in suit formed part of a mauza known as Pala Kher in which both the appellant and Bhawani Das were sharers at the date of the. suit. By his plaint the appellant alleged that the usage of pre-emption existed in the mauza, and that the right thereto was recorded in a wajib-ul-arz in 1863 and again in 1870. It appeared that in 1906 the mauza, which up to that date had been jointly assessed as one mahal, was parti- tioned into five separate mahals and that the shares allotted to the appellant and to Bhawani Das respectively fell into different mahals. By a registered sale deed dated July 22, 1909, Bhawani Das sold the property in suit to the respondent, who had been in possession of it as mortgagee since 1892.

The terms of the wajib-ul-araiz of 1863