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1923 DIGILAW 7 (ALL)

Sayad Amjad Ali v. Sayad Wajid Ali

1923-01-05

body1923
JUDGMENT 1. This is a second appeal in a case arising out of a suit for preemption based upon the Muhammadan Law, Two points have been argued before us. The first is that the Courts below were wrong in holding that the evidence adduced by the plaintiff for the purpose of showing that the second demand (talab-i-itishhad) was made in the proper way was sufficient. 2. The plaintiff was examined and gave evidence to the effect that he had made this demand in the presence of two witnesses. It is claimed that with respect to one at least of the three transfers there was no evidence except the plaintiff's own statement that this demand was made in the presence of witnesses and it is argued that in any case it was necessary that the witnesses in whose presence a demand was made should be produced in Court. 3. We do not think the Muhammadan law lays down any such proposition. It is quite sufficient if the Court believes the statement of the plaintiff and it is not necessary that witnesses should actually be called. In the present case both the Courts below have believed the plaintiff's story. The second point is that the plaintiff gave evidence in the Court below to support a different ease to that which was set out in the plaint. Reference is made to paragraph 7 of the plaint in which it was stated that the plaintiff made separate demands in respect of each of the three transfers. It is pointed out that according to the evidence given in the case the demand in respect of two of these transfers was made at one and the same time. That may very well be, but we have no reason to suppose that there was any change in the plaintiff's case, for we understand the evidence to be that he made demands in respect of each transfer although two of these demands were made at one and the same time. 4. These are the only two points which were argued before us. We find no force in them, and we dismiss the appeal under Order 41, rule 11.