1. In support of the alleged custom the plaintiff relied on entries in the wajib-ul-arzea of 1833, 1860 and 1885. He also relied on a judgment in the ease of the year 1901 and a judgment of the year 1907, and also on a reference in those judgments to an earlier pre-emption decree of 1880. On the other hand, it has been contended on behalf of the defendant that having regard to the previous history of this village, the variations in the three wajib-ul-arzes, and the partition which has since been effected, there is really no custom in this village. In order to show the previous history of this village reliance is placed on two documents called 'Kaifiyat Mahtawi' and 'Kaifiyat Sarishtai Nizamat' of 1833 and 1860 respectively. These documents show that soon after the district of Gorakhpur had been acquired by the British Government from the Nawab Wazir of Oudh, the village was farmed out to one Sheikh Farhat from 1210 to 1212 Fasli. From 1213 to 1215 Fasli the village was in possession of certain mortgagees, Mirza Hasan Ali Beg and Vssubut Ali. From 1216 to 1219 Fasli it was farmed out to three persons, Ganeah Dat, Balgobind and Dat Ram. From 1220 to 1224 Fasli Ganesh Dat and Dat Ram were in possession on the 29th of February, 1818, however, the whole village appears to have been sold and the name of Gohind Singh, auction purchaser, was recorded exclusively. Subsequent to this and about 1820 Gobind Singh sold this village to three persons Sheo Nath, Nandlal and Balgobind. At the time of the regular settlement of 1833 a four anna share was recorded in the names of Uma Dat and Sheo Nath, an eight annas share in the names of Nandlal and Balgobind and the remaining four annas share in the names of Bisheshar Dat, Mahesh Dat and Shankar Dat. It is not disputed that from the year 1820 onwards there have always been more than one co-sharer in this village. It is strongly contended that inasmuch as the village was owned by a single proprietor from the year 1818 to 1820 there could possibly have been no occasion for the growth of a custom of pre emption and that, therefore, the entry in the wajib-ul-arz of 1833 must be taken to be a record of contract. It is then urged that the subsequent entries in the wajib-ul-arzes of 1860 and 1885 must therefore also be presumed to have been records of contract. We are of opinion that this is not a correct way of approaching the question. The plaintiff is entitled to rely on the entry in the wajib-ul-arz of the last settlement of 1885. That entry raises a prima facie presumption that there is a custom of pre-emption existing in this village. The plaintiff can further supplement this evidence by the entries in the earlier wajib-ul-arzes of 1860 and 1833 as corroborative evidence. If these wajib-ul-arzes raise a, prima fade presumption that a custom of pre-emption exists in the village, the burden would lie on the defendant vendee to show the contrary by producing evidence to rebut that presumption. All that is established in this oa3e is that about the year 1820, that is to say more than 100 years ago (and about 55 years prior to the last settlement) there was a single proprietor in this village. In our opinion this circumstance by itself is not sufficient to rebut the presumption arising from the entries in the successive wajib-ul-arzes. A period of 100 years and even of 55 years is not necessarily too short for the growth of a custom of preemption in these provinces where such a custom is well-known to be very common. It is not essential to show that such a custom is immemorial, vide Kuar Sen v. Mamman (1895) 17 All. 87 and Lakhraj Bharthi v. Anrudh Tiwari (1906) 28 All. 434.
2. The next point urged is that inasmuch as there are variations in the there wajib-ul-arzes the presumption is negatived. It is pointed out that under the wajib-ul-arz of 1833 a right was given to mere co-sharers in the village, whereas in the wajib-ul-arz of 1860 aright was given to near co-sharers (hissedar qaribi), then to co-sharers in the thok and then to the other co-sharers in the village, and in the ivajib-ul-arz of 1885 a right was given to own brothers, then to near relations, then to co-sharers in the patti and then to co-sharers in the village. It is apparent, therefore, that in the year 1833 there wag only one category of pre-emptors, in 1860 there were three categories, and in 1885 there were four categories.
3. We must, however, note that so far as the right to pre-empt the property in favour of a co-sharers as against a stranger is concerned, this was recognized in all the throe wajib-ul-arzes. The plaintiff is not claiming a preference against the defendant on the ground that he is either an own brother or a near relation of the vendor. He claims the right of pre-emption on the ground that ho is a co-sharer while the defendant-vendee is a perfect stranger. The addition of the new categories in the wajib-ul-arz of 1885, therefore, does not necessarily negative the existence of a custom of pre-emption in favour of a co-sharer as against a stranger.
4. We may point out that the entry made at the settlement of 1885 is of particular importance. According to the Gazetteer of Gorakhpur (pp. 151-2) the settlement operations commenced soon after 1883 and lasted till 1890. Gorakhpur proper was inspected in 1886-87 or after. The settlement was sanctioned from 1889 to 1919. Now under the Circular of the Board of Revenue dated the 24th of August, 1886, which was issued for the guidance of officers conducting the settlement operations in Gorakhpur district, it was provided that the Settlement Officer should make a note of custom or constitution peculiar to a mahal, and it was further provided that as regards mahals which belonged to proprietors other than Muhammedans the Settlement Officer was to record a right of pre-emption only when the proprietors expressly demanded that it be noted and proved conclusively that the custom existed. In the year 1886 this village was an exclusively Hindu village and we are entitled to presume that at that time the Settlement Officer, before making this entry, was fully satisfied that a custom did exist in the village, We have had occasions to refer to the Circular in several cases, vide the cases of Nandan Singh v. Guptar Singh A.I.R. 1924 All. 424 and Babban Pande v. Lachhman Chaudhari A.I.R. 1924 All. 371.
5. As a special significance attaches to the entry in the last wajib-ul-arz we are entitled to draw a very strong presumption from it, specially as it purports to record a custom of pre-emption and not only an agreement as to such a right.
6. It may also be noted that it is possible that when a more thorough enquiry was made in 1885 complete details of the custom were recorded which were not forthcoming at the time when the wajib-ul-arz of 1860 or of 1833 was prepared. It was held in the ease of Returaji Dubain v. Pahlwan Bhagat (1911) 33 All. 196 that the mere fact that subsequent wajib-ul-arzes are fuller, raises no presumption that they were not records of a custom, for the later wajib-ul-arzes may very well be mere amplifications of the previous wajib-ul-arzes. The case may he different when they absolutely contradict the entries in the previous wajib-ul-arzes and cannot be reconciled with them.
7. We have already noted that in addition to the entries in these wajib-ul-arzes the plaintiff has produced the judgments of 1901 and 1907 the judgment of 1901 also contained a reference to a pre emption decree of 1880. We, therefore, find that the custom did exist.
8. We are also of opinion that the effect of the partition of 1897 which was subsequent to the year 1885, when the last wajib-ul-arz was prepared, cannot be deemed to extinguish the custom. No new wajib-ul-arzes were framed at the partition of 1897 and there is nothing on the record to show that the co-sharers intended that the old custom should be abrogated. It was held in the Full Bench case of Dalganjan Singh v. Kalka Singh (1899) 22 All. 1 that such a partition had not necessarily the effect of extinguishing the previously existing custom. In the recent case of Digambar Singh v. Ahmad Sayeed Khan A.I.R. 1914 P.C. 11 their Lordships of the Privy Council quoted with approval the view of Mr. Justice Banerji that where a fresh wajib-ul-arz has not been prepared at partition, it does not necessarily follow as a matter of law or principle that the custom or contract in force before the partition is no longer to have effect or operation.
9. The view that in the absence of evidence to the contrary the old custom would continue even after the partition, has been consistently followed by this Court, vide the cases of Jokhan Singh v. Sabhajeet Singh A.I.R. 1922 All. 182 and Deokinandan v. Mahtab Rai (1919) 41 All. 426. We, therefore, think that the mere fact that there has been a partition of this village would not necessarily extinguish the right. The partition, however, would have the effect of confining the right to the new fiscal units. Under the pre-existing custom the persona who were jointly liable for payment of Government revenue had a right of pre-emption as against a stranger. After the partition those proprietors whose shares are situated in another mahal are no longer under any joint liability to pay such revenue. Owners of one mahal can, therefore, in no sense be called co-sharers (hissedaran) of the vendor qua the share sold in another mahal. In order, therefore, to establish that the plaintiff has a right of pre-emption in this mahal it is not sufficient for him to show merely that previous to the partition a custom of preemption existed in this village. In the Privy Council case of Digambar Singh v. Ahmad Sayeed Khan A.I.R. 1914 P.C. 11 their Lordships at page 141 pointed out that a mare proof, that prior to the partition of the village the custom of pre-emption existed, would not be sufficient to entitle the appellant to a decree. It would be necessary for him to show, either on the construction of the wajib-ul-arz or by other evidence, that the custom of pre emption which obtained in the unpartitioned mauza would survive on partition of that mauza into separate mahals so as to give a sharer in one of the new mahals a right to pre-empt property in another of those mahals in which he was not a sharer at the date of the sale.
10. The plaintiff is not a co-sharer in mahal No. 2. He is a proprietor in the village. There is nothing to show that at the time of the partition the right of the proprietors in the village to pre-empt shares sold in mahals other than their own was preserved. In the absence of any such evidence, the plaintiff is not entitled to a decree for pre-emption of the share sold in mahal No. 2. The learned vakil for the respondent has relied on the judgments of 1901 and 1907 to show that they are evidence of a right of pre-emption having been exercised in favour of a co-sharer in another mahal. This view is expressed by the learned Subordinate Judge also. We are, however, unable to accept that this was so. A perusal of the judgment of the year 1901 makes it quite clear that the learned Subordinate Judge came to the conclusion that it had not been established in that case that the plaintiff was a co sharer of another mahal and not of the same mahal in which the share sold was situated; whereas the judgment of 1901 which unfortunately has not been printed shows that the claim was decreed not on the ground that the plaintiff was a co-sharer in another mahal but on the ground that he was a near relation of the vendor.
11. The defendant-vendee says that he is a rishtedar garibi of the vendor and, therefore, claims that he comes under the first category of the entry in the wajib-ul-arz of 1885. There is a pedigree attached to the written statement filed by the defendant which shows that the defendant was the nephew of Babu Sham Lal who was the maternal grandfather of the husband of the vendor, Mt. Padmavati. He is not related in the direct paternal line but is related through a female and he is related really to the vendor's deceased husband and not to the vendor herself. Furthermore the several links in the pedigree show that he is not a near relation (hissedar garibi) though he may be called a distant relation (hissedar baidi) of the vendor's husband, We are, therefore, not satisfied that the defendant vendee can bring himself within the second category mentioned in the wajib-ul-arz of 1885, namely the category of near relation so as to have a preference over the plaintiff.
12. Their Lordships, after holding on the evidence that the plaintiff had not refused to purchase the property before the sale was effected and that it had not been established that the plaintiff was fighting the case not on his own behalf, proceeded:
Furthermore we are of opinion that even if it had been established that the plaintiff had instituted the suit at the instigation of other persons, that would not by itself have disentitled the plaintiff from getting a decree. If the plaintiff has a legal right to pre-empt, it is unnecessary for the Court to consider from what source he is going to procure the pre-emption money. If, subsequent to this litigation he allows any stranger to come in or attempts to transfer the property to such stranger, it would be open to the co-sharers of the village to bring a suit; for preemption. It was held in the case of Athar Husain v. Idu Shah (1920) 23 O.C. 85, by the Oudh Court of which one of us was a party, that; the mere fact that the suit was instituted at the expense of another parson and that the person claiming pre-emption was merely a nominal plaintiff acting on his behalf was immaterial so long as the plaintiff had the legal right to pre-empt. This view has been followed by this Court in the case of Makhan v. Shy am Lal S.A. No. 1444 of 1922, decided on the 25th of January, 1921.
13. The last point to consider is as to whether the plaintiff is entitled to pre-empt the two houses situated in mahal No. 2 which have been transferred under the sale-deed. In this mahal the entire patti No. 6 has been transferred, and it is not disputed that these houses stand on the land so transferred. Ordinarily these houses would be deemed to be appurtenant to the zamindari property unless there was evidence to show that they were treated separately and stood on a distinct and separate footing. Reliance is placed strongly on behalf of the defendant on the circumstances that in the sale deed these houses are separately mentioned and their boundaries are separately given. In every village, however, zamindan have their collection houses which are appurtenant to the zamindari. Our attention has not been drawn to any specific evidence which would indicate that these houses were held and occupied separately and independently of the zamindari. It was held in the case of Abu Husain v. Ramzan Ali (1882) 4 All. 381, that in the absence of evidence to the contrary, the houses or buildings situate within the zamindari area were included in and passed with the zamindari. See also Banke Lal v. Jagat Narain (1900) 22 All. 168. We may also note that in the sale-deed no separate valuation of these houses has been entered.
14. The result, therefore, is that this appeal succeeds as regards mahal No. 2 and fails as regards mahal No. 3 in which we find that the plaintiff is entitled to a preferential right. The sale in this case was effected for a consideration of Rs. 25,000 the correctness of which is no longer challenged here, but there are no materials on the record to enable us to determine what portion of that consideration was paid on account of the share sold in mahal No. 2 and what part of it was paid on account of the portion sold in mahal No. 3 including the materials of the houses standing therein which are comprised in the sale. We accordingly direct the lower Court to determine, after taking such additional evidence as the parties may adduce, what portion of the sale consideration should be paid by the plaintiff for the portion of the property in dispute which is situated in mahal No. 3 including the materials of the houses in question as a condition precedent to the enforcement of the pre-emptive right
15. Two months time will be allowed for the return of the finding and ten days will be allowed from the date of receipt of the finding for filing objections.
[After receipt of the finding the appeal was allowed in respect of the property situate in mahal No. 3.]