1. This appeal arises out of a suit for pre-emption. The lower Court dismissed the claim on the ground that the right of pre-emption recorded in the Wajib-ul-arz of the village was a right existing by contract and not by custom. The case appears to us to resemble closely the case of Returaji Dubain v. Pahalwan Bhagat 7 Ind. Cas. 680 : 7 A.L.J. 1040 (F.B.). The village in dispute is in the Gorakhpur District as was the village in that case The Wajib-ul-arz of 1833 gives the names of the co-sharers in the village and describes them as 'birt-holders' and co-sharers. There is also a recital that the village in question is the ancestral birt property of the co-sharers and that they had agreed to pay the Government revenue assessed on it. The provision as to pre-emption runs as follows: If any of us wishes to transfer the whole or a portion of his share, he shall inform his co-sharers in the village, and shall sell or mortgage it to them at a fixed price. If any one transfers his share to a stranger without informing the co-sharers in the village, the transfer shall be invalid.' In the Wajib-ul-arz of 1860 the co-sharers are enumerated and are likewise described as co-sharers and lumbardars of the village, and it is also stated that the village was acquired by the ancestors of the co-sharers and consisted of four thoks. The provision as to pre-emption is as follows: 'The near co-sharer of the man wishing to transfer his share shall have a right to take it and in case of his refusal the share shall be transferred to the other co-sharers in the thok and in case of refusal by the latter to a co-sharer in another thok.' These provisions are very similar to those to be found in the case above cited. It was there held that there was no contradiction between the provisions in the two Wajib-ul-arzes, that the earlier gave the right of pre-emption to co-sharers generally, the latter did the same but it defined the custom with greater particularity and was in fact more correct. It is contended, however, by Mr. Agarwala on behalf of the respondents that no custom of pre-emption could have existed at, the date of the Settlement of 1833 in view of a document on the record which goes to show that the village was in the year 1909 and following years in the possession of a single owner, namely Raja Ajit Mal. In the document in question it is recited that the village is in the possession and appropriation of Raja Ajit Mal on account of nankar from former times up to 1215 fasli and that in 1216 the nankar was resumed under the order of the Collector. It is contended that this document proves that Raja Ajit Mal was the proprietor of the village and being the sole proprietor there could in his time be no custom of preemption and that, the right of preemption which was afterwards recorded is the creature of contract. We cannot accede to this argument. The document in question merely shows that Raja Ajit Mal received out of the profits of the village a certain allowance for maintenance and this is quite consistent with the case of the plaintiffs-appellants that the village belonged to the persons who are named in the Wajib-ul-arzes of 1833 and 1860' that they were the proprietors. The Raja was merely entitled to a subsistence allowance out of the profits. In view of the Full Bench decision the decree of the Court below cannot be allowed to stand. The only question decided by that Court was that the record as to pre-emption in the Wajib-ul-arz was a record of contract. We hold that it was a record of custom and this being so, the other questions raised in the suit must be determined by the Court below. We accordingly allow the appeal, set aside the decree of that Court and, inasmuch as that Court has dismissed the suit upon a preliminary point, we remand the suit to the Court below under Order XLI, Rule 23, with a direction that it be reinstated in the file of pending suits in its original number and be tried upon the merits. Costs here and hitherto will abide the event. The costs in this Court will include fees on the higher scale.