JUDGMENT
1. This is a defendants appeal arising out of a suit for pre-emption. The first Court dismissed the claim, but on appeal the lower appellate Court has decreed it, holding that there is no right of pre-emption in the mahal in which the property is situated. There are three mahals, in this village. Wajib-u-arzes for all the three mahals have been produced and only two record a right of pre-emption, and the third mahal in which the property sold is situated does not record any right of pre-emption at all. It only states that it is owned by a single proprietor.
2. It is quite clear that the Act being applicable to the village in question, Section 3 allows the right of pre-emption only in accordance with the provisions of this Act. Under Section 5 a right of preemption is to be deemed to exist only in mahals or villages in respect of which any wajib-ul-arz prepared prior to the commencement of the Act records a custom, contract or declaration. No wajib-ul-arz prepared of the mahal in question records any such right. Thus there is no record of rights in respect of the area covered by this mahal which contains any such declaration. In our opinion the mere fact that there are wajib-ul-arzes for other mahals would not be sufficient to allow of a right of pre-emption in this mahal.
3. No earlier wajib-ul-arz of the village before there was a partition has been produced in this case. The lower appellate Court thought that because the wajib-ul-arzes of the other two mahals recorded similar customs, the wajib-ul-arz of the parent mahal or village must also have recorded a similar right. In our opinion such a presumption is by no means justified inasmuch as it is quite possible that the entry of such a right was made for the first time at the time of the partition when the three mahals were formed. In any case it was incumbent on the plaintiff to show that there was a wajib-ul-arz prepared prior to the commencement of this Act in respect of this particular mahal or village out of which it was formed which recorded such a custom or right. As the plaintiff failed to show that, the suit ought to have been dismissed.
4. We accordingly allow the appeal and setting aside the decree of the Court below dismiss the plaintiff’s suit with costs to the appellants.
