1. In our opinion this appeal must be allowed, the decree of the lower appellate Court set aside, and the decree of the Court of first instance restored. The suit was a suit for pre-emption of an area of 18 biswas comprised on a Plot No. 94. It is clear on all hands that at one time, at any rate this Plot No. 94 formed a portion of a patti called 'Patti Haider Husain' in which the plaintiff-pre-emptor is a co-sharer and in which the vendee is not.
2. It is stated that in consequence of some litigation which took place in the year 1918 this area of 18 biswas came to one Nawab Husain, and it is further stated that by reason of a compromise which was arrived at between the persons who were owners of this patti Nawab Husain was given a proprietary interest in these 18 biswas of land. It was also stated by counsel in the trial Court that revenue had been assessed on these 18 biswas but it was not known whether the revenue had been paid or not.
3. The lower appellate Court seems to have thought that by reason of these proceedings in the year 1918 this area of 18 biswas had become what is known as haqiat mutafarriqa or, to adopt the expression used in the Agra Pre-emption Act, a petty proprietary interest.
4. We are prepared to assume that this area of 18 biswas had become a petty proprietary interest, but we fail to see why for that reason it ceased to be part and parcel of Patti Haider Husain. There is nothing to show that the judicial proceedings of the year 1918 had the effect of excluding this parcel of land from Patti Haider Husain and we must, therefore, take it that the plot still remains in Patti Haider Husain, although it may have become a petty proprietary interest.
5. If, therefore, there is a right of pre-emption in respect of this property, it is clear that the plaintiff has the right to pre-empt. It is not made to appear that there was any coparcener in this petty proprietary interest, and that being so the right to pre-empt accrues to persons who are mentioned in Class 2 of Section 12, Sub-section (1) of the Act. The plaintiff is a co-sharer in Patti Haider Husain and the vendee is not.
6. It was sought to be argued that no custom of pre-emption ought to be presumed to exist here because it is said in the wajib-ul-arz 'the record is only a Record of Right to pre-empt proprietary interests.' In our opinion if there is a record of custom in the wajib-ul-arz providing for pre-emption, whatever the extent of custom may be and in whatever way it may be expressed, there is a right of pre-emption under the Act which can be exercised in respect of a petty proprietary interest.
7. We allow the appeal, set aside the decree of the Court below and restore the decree of the Court of first instance. The respondents will pay the costs of the plaintiff-appellant both in the lower Court and in this Court. Costs in this Court will include fees on the higher scale.