1. We have heard the learned Counsel in this case and we think the decree of the lower Appellate Court ought not to stand. In our opinion on the terms of the wajib-ul-arz the plaintiff was entitled to pre-emption. We cannot agree with the opinion of the two Courts below in this matter.
2. The wajib-ul-arz was one which was prepared at the settlement of M. Nasir Ali which took place about the year 1870.
3. Under the term 'Custom' as recorded in that document the first class of pre-emptors consists of own brothers, the second class, of near brothers, and the-third class consists of 'Hissadaran patti aur gaon ke'.
4. The village in which the property in dispute is situated is Kharkhauda, and it would appear from the evidence that this village, which was undivided at the time the wajib-ul-arz was prepared, has been divided into several mahals. One of these mahals is mahal Sagar Singh which is named after the plaintiff, and it is admitted that the property sought to be preempted is included in this mahal in which Sagar Singh himself is a co-sharer.
5. It is further clear that the purchaser is a co-sharer in another mahal of the same mauza which is named mahal Qaim.
6. The plaintiff has no claim to be brought within either the first or the second category of preemptors. The question is whether he can bring himself within the third category. We agree with the Courts below so far in holding that for purposes of pre-emption the co-sharers in the patti and the co-sharers in the village (gaon) were placed upon the same footing. But these words have to be interpreted in the light of existing circumstances. It seems clear enough that the third class of preemptors consisted of co-sharers who were united by bonds of common interest and liability, In the new constitution of the, village those bonds have been severed, and the purchaser here, whose property is situated in mahal Qaim, has no community of interest or liability with any of the co sharers in the other mahal, namely, mahal Sagar Singh.
7. Applying the language of the wajib-ul-arz to the altered constitution of the village arising out of partition it seems to us quite clear that the defendant must for purposes of pre-emption, be treated a stranger to the co-sharers in mahal Sagar Singh in which the property sought to be preempted is situated.
8. We agree therefore with the argument put before us on behalf of the plaintiff appellant that in these circumstances the plaintiff is entitled to pre-emption, and we find accordingly.
9. The result is that we allow the plaintiff a decree for pre-emption.
10. As regards the sum which the plaintiff mast pay we notice that according to the finding of the 1st Court the sale price of the property was Rs. 1,500-0-0 and it was stated that a further sum of Rs. 1000-0 was given by the purchaser to the vendor in consideration of the relinquishment of sir rights.
11. The relinquishment of sir rights cannot form the subject of pre emption, and in the circumstances we think the proper order to pass is that the plaintiff shall pay into Court a sum of Rs. 1,500-0-0 within two months from the date of this Court's decree. If the sum is deposited in Court within the time limit then the plaintiff will get his costs in all three Court's including in this Court, fees on the higher scale. On the other hand if he fails to deposit the sum of Rs. 1,500-0-0 within the time fixed then his suit will stand dismissed in all three Courts with costs including fees in this Court on the higher scale.