Rafiq and Lindsay, JJ.
1. The subject-matter of the dispute in this case is a small plot of land, No. 1293, situated in Bamapura, one of the quarters of the city of Benares. According to the finding of the court below it has been used lor the cultivation of fruit trees. The parties to the suit arc Hindus, and the plaintiff claimed to be entitled to pre-empt a sale of the plot in question made in favour of the defendant appellant.
2. It was alleged in the 4th paragraph of the plaint that a custom of pre-emption prevails in the city of Benares, upon which the plaintiff relied for his right. It was further pleaded in the 6th paragraph of the plaint that the plaintiff had observed the preliminary formalities on hearing of the sale, from which it is to be understood that the plaintiff admits that preemption as exercised in Benares city must be sought and enforced in accordance with the procedure laid down by the Muhammadan law. Both courts have decreed the plaintiff's claim. In appeal the main contention is that, as the plaintiff had failed to prove that the custom alleged extends to the purchase of lands as distinct from houses, his suit should have been dismissed. It is common ground that a custom of preemption relating to house property and based upon the Muhammadan law obtains in the city of Benares. This custom has been affirmed by a long series of judicial decisions. It is argued, however, that no judicial recognition has been extended to pre-emption where the subject of sale is land as distinct from house property.
3. It is true that in the course of the trial the plaintiff was able to produce a copy of a judgment delivered in the year 1865, in which pre-emption of a plot of land within the city was decreed. It is also shown that the judgment in question contains a somewhat obscure reference to a decree for preemption of land passed in the year 1853. But it is argued that this is no adequate proof of a custom of pre-emption relating to land in the city. The learned Judge of the court below took the view that inasmuch as it had been established that the Muhammadan law of pre-emption had been adopted with respect to house property, it should be presumed that the right of pre-emption extended to other kinds of property which may be pre-empted under the Muhammadan law, and that consequently the land in suit viz., an orchard, was so liable to pre-emption. He says there is no proof that the custom in Benares is confined to houses. It was, however, for the plaintiff to prove that the custom he relied upon extended to property other than houses and, in our opinion, he failed to do so. The facts that a decree for pre-emption of a piece of land was passed so far back as the year 1865, and that possibly a similar decree had been passed some years earlier, would not be sufficient to show that such a custom extended to lands within the city. The fact that no instance of the pre-emption of such lands could be established between the year 1865 and the year 1920, when this suit was brought, is, in our judgment, the strongest possible proof that no such custom exists. There is no more prolific source of litigation in this province than the law of pre-emption, and it is impossible that had there been such a custom there should not have been many cases brought before the courts during this long period, during which there must have been numerous instances of sale of plots of land within the city. In the ruling in Jagjivon Haribhai v. Kalidas Mulji (1920) I.L.R. 45 Bom. 604 the Bombay High Court, in dealing with a case from the Surat district, refused to extend the Muhammadan law of pre-emption to agricultural lands, although it was established that this law had been adopted generally with respect to house property in the district. The learned Judge of the court below in this judgment sholud not be followed here, because the law of pre-emption has to a large extent been adopted in this province in the villages and with respect to zamindari property. but the considerations which apply in the case of village property do not apply necessarily to property in the cities. The custom in the villages has grown up out of the desire to prevent the intrusion of strangers into the co-parcenary bodies; no such consideration would arise in the cities where people of all classes congregate together. We think the principle laid down in the Bombay case is the right one to follow and that there should be no extension of the Mahammadan law of pre-emption among Hindus beyond the limits established by proof of custom.
4. It is here proved that the Hindus of Benares have adopted the Muhammadan law with respect to the pre-emption of houses. Is is not however, established that this law has been adopted so as to extend to property of other descriptions. The plaintiff has failed to prove his case, and, accepting the appeal, we set aside the decree of the court below and direct that the suit of the plaintiff be dismissed with costs in all courts.