1. This appeal arises out of a suit to enforce a right of pre-emption claimed solely on the basis of custom. The plaintiffs pleaded that under the custom set forth in the zamima khewat for 1294 fasli, (corresponding to the years 1884 and 1885) they, being relations and nearer co-sharers to the vendor, were entitled to pre-empt. They also contested the amount of consideration set forth in the sale-deed. The defence was that there was no custom the plaintiffs had no preferential right and that the amount of consideration as set forth in the sale-deed was correct. The Court of first instance held that the custom was, proved, the plaintiffs had preferential right and that the true consideration was Rs. 1,511-6-0. The defendants appealed to the lower appellate Court and the plaintiffs filed objections. The learned District Judge held that the entry in zamima khewat having been made by the Settlement Officer in excess of his powers as such was of no evidential value and this being the only evidence of custom on the record, the custom was not proved. On the question of consideration he agreed with the Court of first instance. The plaintiffs' objection which related to consideration was not considered.
2. On appeal it is urged that the entry in the .zamima khewat was admissible in evidence and that it established the custom. On examination, however, of the plaintiffs' own statements as recorded in the Court of first instance it is quite clear that this is one of those cases in which no custom of pre-emption could ever have arisen. The property in suit was originally jungle belonging to Government. A Forestgrant was made to certain persons for fixed period on the condition that they cleared the forest and brought the land under cultivation and if these conditions were fulfilled, Government agreed to assess the lands to land revenue and give them the rights of zamindars. At the time when this zamima khewat was drawn up no zamindari was in existence. Therefore, there could have been no custom of pre-emption such as was allelged by them in respect of a sale by a co-sharer of his share in the zamindari. It is them urged if there was no custom then this document, the zamima khewat, might be treated as evidence of contract, which contract might be enforced between the parties. This plea must fail for two reasons. First of all the document itself is no evidence of any contract at all. In the second place even if it was the language of contract there is no evidence on the record to show that vendor, or any of his predecessors-in-title, signed it and 'were parties to. I would note here that on the plaintiffs' own evidence it was only in the year 1904 that Government revenue was finally assessed on this property: so that the zamindari has only recently come into existence. In this view of the case the appeal must fail and it is dismissed with costs including fees in this Court on the higher scale.