Rafiq and Lindsay, JJ.
1. It appears that Maulvi Aziz-ud-din was the proprietor of a grove situate in the city of Budaun. The maulvi died some time ago, leaving him surviving three sons and a daughter by one wife and one son by another wife. The latter was called Muhammad Abul Hasan and was in judicial service in Hyderabad. The names of the children by the first wife were Wahab-ud-din, Wahaj-ud-din, Zia-ud-din and Musammat Afzal-un-nissa. Some years ago Afzal-un-nissa sold her share to Abul Hasan. On the 2nd of November, 1920, Wahab-ud-din sold his share in the grove to Abul Hasan in lieu of Rs. 220. Zia-ud-din, the own brother of the vendor, brought the suit out of which this appeal has arisen against the vendor and the vendee to recover the share sold, on the ground of pre-emption. It was alleged in the plaint that after the death of M. Aziz-ud-din the children by the first wife gave his share to Abul Hasan, the son by the second wife, and separated from him. The plaintiff Zia-ud-din was employed in Government service at Aligarh, when his brother Wahab-ud-din executed the sale deed of his share in the grove on the 2nd of November, 1920, in favour of Abul Hasan. On the 10th of November, 1920, when Zia-ud-din went home he learnt of the sale. Immediately on coming to know of the sale he made the two demands required by the Muhammadan law, and, as the vendee declined to transfer the share to him, the present suit had to be brought. The claim of the plaintiff was based on the allegation that a custom of pre-emption obtained in the city of Budaun under which he, as the own brother of the vendor, had a preferential right over the vendee. Another basis of the claim was that under the Muhammadan law, apart from any custom, the plaintiff, being the shafi-khalit had a better right of purchase than the vendee. The claim was resisted by the denial of the custom set up in the plaint and of the allegation of the plaintiff being a shafi-khalit. It was pleaded for the defence that there had been a partition of the grove among all the children of M. Aziz-ud-din, each of them being in possession of his or her separate share. The plaintiff therefore had no better right to the property in suit than the vendee. The court of first instance dismissed the claim, holding that all the children of M. Aziz-ud-din had divided the grove prior to the disputed sale; that no custom of pre-emption obtained in Budaun, and that the plaintiff was not a shafi-khalit. On appeal the learned District Judge upheld the decree of the first court.
2. In second appeal before us the plaintiff challenges the finding of the court below with regard to the absence of the custom of pre-emption in Budaun and the status of the plaintiff as not being a shafi-khalit. The finding of the court below with regard to the partition of the grove in question is admitted, and indeed it could not be denied as the finding is one of fact. The learned Counsel for the plaintiff appellant has read to us the paragraph of the wajib-ul-arz upon the basis of which he contends that a custom of pre-emption prevails in Budaun. We have duly considered the language of that paragraph and we agree with the court of first instance that it does not prove the custom set up on behalf of the plaintiff. The real dispute in the case is as to the status of the plaintiff as owner of part of the grove, i.e., whether he is a shafi-khalit. The case for him is that the vendee has got either a house or a bagia, as is marked on the plan to the east of the grove in question. On account of his ownership of the said property he has a right of way over those portions of the grove which have fallen to the lot of the plaintiff and his two brothers. The share of the vendor therefore bears a servitude, i.e., the liability to be walke over by the vendee. The same servitude is borne by the share of the grove of the plaintiff. In other words, the statement is that the vendee is the owner of a dominant tenement while the pre-emptor and the vendor are the owners of two servient tenements. There is therefore a bond of union between the vendor and the plaintiff, as both of them are the owners of servient tenements and thus the plaintiff is a shafi-khalit and has a superior right to purchase the share of the vendor to the vendee. The obvious reply to this argument is that qu the share of the vendor both the pre-emptor and the vendee are owners of dominant tenements, for it appears from the plan on the record marked Ex. A. and the evidence on the record that, in order to get to his portion of the grove or away from it, the plaintiff has to pass through the share of the grove that belongs to the vendor which was sold on the 2nd of November, 1920. The vendee has also to pass over the same portion of the grove of the vendor. Thus both the pre-emptor and the vendee are, qu the share of the vendor, proprietors of dominant tenements. It is, however, argued that the vendor's share of the grove is a servient tenement qu the vendee as proprietor of the property to the east of the grove, and the vendee is not an owner of any servient tenement. The plaintiff pre-emptor has a bond of union with the vendor inasmuch as his share and the vendor's share are both burdened with the servitude of the right of way in favour of the vendee. The plaintiff pro-emptor has, it is true, an additional right, viz., the right of passing over the property sold. He has thus a twofold right to describe himself as a shafi-hhalit. The vendee, on the other hand, can base his claim to purchase on one right only, viz., that of being the owner of a dominant tenement. We think that the contention is not quite correct. The vendee stands in the same position as the pre-emptor. The vendee purchased the share of Afzal-un-nissa some years prior to the disputed sale. The share of Afzal-un-nissa adjoins the share of the vendor on the west side. That portion of the grove which the vendee purchased from Afzal-un-nissa also bears the servitude of the right of way in favour of the plaintiff pre-emptor. The vendee can say that he also is the owner of a servient tenement i.e., his property bears the same burden as the property that has been sold to him and is now in dispute. We thus find that both the plaintiff pre-emptor and the vendee stand in the same degree, whether as owners of dominant tenements or as owners of servient tenements in respect of different portions of their properties. The contention for the plaintiff appellant is that if this Court is of opinion that he and the vendee stand in the same degree, the property in dispute ought to be divided between him and the vendee. We think this contention is correct and is supported by authority: Muhammad Yakut v. Kanhai Lal (1921) I.L.R. 44 All. 83. We therefore allow the appeal, set aside the decrees of the courts below and decree the claim of the plaintiff appellant to half the property sold on the 2nd of November, 1920, on the payment of Rs. 110 within two months from the date of the decree of this Court. As to costs, parties will bear costs in proportion to failure and success throughout. In case the money is not deposited within two months from the date of the decree of this Court, the claim of the plaintiff will stand dismissed with costs throughout.