JUDGMENT
1. This appeal arises out of a suit brought by the appellant to enforce a right of pre-emption on the basis of village custom. Both the lower Courts have held on a construction of the wajib-ul-araiz of 1833 and 1862 that the plaintiff has failed to prove the custom which he alleges. The pre-emptor, the vendor and the vendee are all co-sharers in the village. The pre-emptor and the vendor are near co-sharers in the same thoh. The plaintiff relied upon a custom as set forth in the wajib-ul-arz of 1862. According to that document, a near co-sharer has a right of preemption as against the remote co-sharers in the village. The plaintiff’s case is that this record is a record of custom and that the document has been wrongly interpreted by the lower Court. The respondent filed copies of the wajib-ul-araiz of 1833 and of 1862. They also filed a copy of the document called kaifiat sarishta nizamat. Under the document of 1833 it is quite clear that the plaintiff would have no right of pre-emption as against the defendant vendee. That document merely gives a right to a co-sharer in the case of sale to a stranger. It is admitted by the learned pleader for the appellant that under that document his client would be completely out of Court. But he urges that the custom of the year 1862 was set forth in the document of that year. He places great stress on the decision in Hub Lal v. Ganga Sahai 6 Ind. Cas. 151 : 7 A.L.J. 519 in which similar documents were considered. That case related to another village and not to the village now in question. It was held that there was really no material difference between the language of the document of 1862 and 1833. The learned pleader, however, had to admit that the difference in the two documents which are now before us is such that his client would be completely out of Court under one and would have a right under the other. There is, therefore, as far as he is concerned, a ”material difference between the two documents. Prima facie the entry in a wajib-ul-arz, is the record of custom. Adopting this presumption in 1833, there was a custom under which the plaintiff had no right of pre-emption in the circumstances of the present case. The allegation that the custom of 1862 was binding is met by the opposite side with the document called kaifiat sarishta nizamat which says that in the intervening period between the two documents there was no transfer whatsoever. This clearly shows that there could have been no change in the custom. It seems far more likely that between these two settlements the cosharers increased in number and split up into several branches and the mahal was also split up. To meet this new condition of affairs when the wajib-ul-arz of 1862 was drawn up, the co-sharers probably had the new stipulations entered in the record of that settlement. But it is quite clear that no fresh custom could have sprung up between those two dates. In the case of Gokul Dichhit v. Maheshri Dichhit A.W.N. (1905) 266 : 2 A.L.J. 790, the custom existing in the same village was considered. On page 267, Mr. Justice Banerji says: It may be that in 1833 the village was not divided into thoks, and that the only custom which then existed was the custom under which every co-sharer had a right of pre-emption as against strangers. It is quite probable, that a custom sprang up subsequently to 1833 and became an invariable custom so far back as 1862 when the wajib-ul-arz of that year was prepared by which a co-sharer in the same thok acquired a preferential right of pre-emption”. It is quite clear with reference to the kaifiat sarishta nizamat, which apparently was not before the Court in the above mentioned case that no such custom could have sprung up between the years 1833 and 1862.
2. It seems to us that the only custom which can be said to have been established in the present case is that recorded in the wajib-ul-arz of 1833. This is on the assumption that that record is a record of custom and not of contract.
3. In our opinion the plaintiff has failed to establish the existence of a custom in this village under which he could be entitled to pre-empt as against his co-sharers. We, therefore, dismiss the appeal with costs.
