JUDGMENT
1. This appeal arises out of a suit for pre-emption. It appears that in the year 1874 a mortgage was made by way of conditional sale. In the year 1910 a suit for foreclosure was brought. The parties compromised, the terms being that a decree was to be made for foreclosure, the mortgagor apparently giving up all right to redeem. The contention on behalf of the plaintiff is that this mortgage by conditional sale in 1874 coupled with the decree in the terms of the compromise was equivalent to a sale, and he contends that a custom of pre-emption preyails in the village. The evidence of the custom consists of an entry in the Wajib-ul-arz which gives a right to certain co-sharers to pre-empt property in the case of a simple sale and also in case of a mortgage with possession or a mortgage by way of conditional sale. It is then argued on behalf of the plaintiff that the events which have happened in the present case amount to a simple sale and accordingly there is a right of pre-emption. In all cases in which the plaintiff relies on a custom of pre-emption, he has to prove a custom sufficient to meet the circumstances of the case, i.e., that he comes within it. We may assume for the purposes of this case that a custom of pre-emption does prevail in the village, enabling a co-sharer to preempt in the case of a simple sale. We may also assume the existence of the custom in respect of mortgages with possession and mortgages by way of conditional sale. In the case, however, of a simple sale the right must be claimed within the period allowed after the sale has been , made. In the case of mortgages the claim must also be made within the period of limitation after the date of the mortgage and in such a case the right is a right to be substituted for the mortgagee. It seems to us absolutely clear that if the plaintiff alleged that there was a custom of pre-emption prevailing in this village enabling a co-sharer to pre-empt property where the mortgage had been made by way of conditional sale in the year 1874 and after a suit for foreclosure had been brought in 1910 and followed by a decree absolute, he would have completely failed to prove such a custom by mere production of the extract from the Wajib-ul-arz in the present case. The very fact that the entry shows that there is a right of pre-emption in the case of a simple sale, and also a right to be substituted for the mortgagee in the case of mortgages with possession, or mortgages by way of conditional sale, negatives that there is any right after a decree for foreclosure has been made absolute. The last part of the clause makes further provision which may or may not be a custom, namely, that if there has been no pre-emption in the case of a mortgage, then when the time for redemption is about to expire the co-sharer, if the mortgagor has not the means himself, may go to the mortgagee with the money, redeem the property and hold it for the mortgagor, This latter part of the clause clearly does not apply to the circumstances of the present case. The plaintiff never went to the mortgagee with the money nor does he ask to be allowed to redeem the property and hold it for the original mortgagor or his representatives. He seeks absolute possession of the property by pre-emption as on a sale. In our opinion what happened in the present case is in reality exactly what would have happened if the mortgagor had allowed the usual decree to be made in the foreclourse suit, instead of agreeing to a decree for foreclosure, and abandoned his right to redeem. In other words the plaintiff has failed to prove the existence of a custom giving him a right of pre-emption under the circumstances of the present case. Reliance is placed upon the case of Bahadur Singh v. Ram Singh 27 A. 12 : 1 A.L.J. 353 : A.W.N. (1904) 149. In that case it was no doubt held that, the plaintiff was entitled to pre-empt after a decree for foreclosure had been made absolute. At page 14 of the report the learned Judges say : The question we have to decide is whether under the terms of the Wajib-ul-arz the suit can be maintained. We have carefully considered the terms of that document, and we find no reason to dissent from the view taken by the Court below.” With all respect to the learned Judges who decided this case, we desire to remark, as was pointed out in the case of Ganga Singh v. Chedi Lal, 12 Ind. Cas. 98 : 8 A.L.J. 996 : 33 A. 605., that the issue in a preemption case based on custom is not the construction of the Wajib-ul-arz. The issue is, does or does not the custom of pre-emptien prevail,” the onus lying on the plaintiff to prove the custom We allow the appeal, set aside the decree of both the Courts below and dismiss the plaintiff’s claim with costs in all Courts.
