1. This appeal arises out of a suit for pre-emption based upon a village custom. The Court of first instance dismissed the suit holding that the custom was not proved. The lower Appellate Court has decreed the suit holding that the custom is proved. The plaintiff-respondent, to prove his custom, produced the wajib-ul-arz of the Settlement of 1872. He also produced a sale-deed of 18th May 1907, two decrees of 1893 and one decree of 1898. The defendants-appellants to rebut this evidence produced an old wajib-ul-arz of 1853 drawn up at a Settlement known as Mohan Singh's Settlement. The village in question, I may note, lies in the Meerut District. The wajib-ul-arz of 1872 has not been filed in extenso but only an extract setting forth that paragraph which relates to the right of pre-emption. This paragraph is headed 'dastur-i-haq-i-shafa'. It then goes on to record that a co-sharer who wishes to dispose of his share has the right to do so, but that he should offer it first of all to his own brother (bhai haqiqi) and then to his more distant relatives, and then to other co-sharers in 'the thok and village. There is nothing in the language of this wajib-ul-arz to indicate that what was recorded was an agreement among the co-sharers and not a custom; and, following the principle laid down in Majidan Bibi v. Sheikh Hayatan A.W.N. (1897) 3 I must hold that this wajib-ul-arz is prima facie evidence of the existence of a custom. The sale deed of 18th May 1907 is, in no way, evidence of existence of a custom. It merely says that in that year a suit for pre-emption was brought and was compromised, the vendee selling the property to the pre-emptor. There is no mention either of custom or contract in this document.
2. The two decrees of 1893 do not show that the right of pre-emption claimed in those suits was based upon custom The word custom is not to be found in the decrees. Standing alone as they do, without the pleadings in the suits, or the issues, or decisions thereon, they are no evidence at all of custom, and do not come within Section 13 of the Evidence Act.
3. The decree of 1898 is accompanied by the judgment. In that case the right of preemption was based upon a condition entered in the wajib-ul-arz and the village custom. The custom apparently was not denied as the vendee in the case was also a co-sharer in the village. The matter was compromised. As evidence of a particular instance in which the custom was claimed these documents fall within Section 13 of the Evidence Act, though they are not of very great value.
4. To rebut this evidence the defendants-appellants produced a wajib-ul-arz of 1853, and it is claimed that what was set forth in that year was clearly the record of an agreement and not of a custom, and that, therefore, the wajib-ul-arz drawn up in the Settlement of 1872 could not be the record of a custom. Attention is also drawn to the fact that when the records of the present Settlement were drawn up, no entry was made in respect to the right of pre-emption. Attention is also drawn to the decision of a Bench of this Court in Kesho Rani v. Ajudhia Nath 6 A.L.J. 9 : 1 Ind. Cas. 82, in which there was a similar contest. The suit in that case was one from the Aligarh District. The language of the wajib-ul-arz there construed was of similar import though not the same as in the present case, and it is urged that I should follow that ruling in the present case and construe the present document of 1853 as the wajib-ul-arz of 1863 was construed in that case. It seems to me highly dangerous to construe one document according to the construction placed upon different language (though it may be of similar import) in another document. I take the wajib-ul-arz of 1853 by itself. In the preamble the co-sharers state as follows: We record the following conditions in the wajib-ul-arz, and we agree to act according to these conditions until the next settlement comes into force.' In para. 6 of that wajib-ul-arz the heading is mention of the transfer of right by sale, mortgage or gift.' The paragraph then goes onto set forth that each co-sharer is entitled to transfer his share. But that there is one condition, namely: that he should offer it to his co-sharers in certain order. There can be no doubt that in the preamble the co-sharers in the village distinctly record an agreement to act according to what is entered in the wajib-ul-arz. It is quite clear that in that wajib-ul-arz many customs and usages in force in the village are set forth in detail. It is, therefore, quite clear to me that the co-sharers agreed to act according to many pre-existing customs in the village. It is, therefore, necessary to look to the language of paragraph 6 to see whether or not it contains an agreement for the future, or whether it sets forth a custom or practice which was then in force in the village. That paragraph clearly uses the present tense. It sets forth that each co-sharer has a right to transfer his share, but that he is bound by one condition, namely, that he should offer it in a certain order to his co-sharers. There is nothing in the language of this paragraph, to indicate that in this respect the co-sharers were entering into a new contract for the future. I. do not think that the language of the preamble in the present instance is such that one can conclude from it that everything which was entered from the first to the last in the wajib-ul-arz was an agreement for the future. Prima facie the wajib-ul-arz of 1353 is evidence rather of a custom than of a contract on the point of pre-emption. The wajib-ul-arz of 1872, therefore, stands unrebutted. It is prima facie evidence of the existence of a custom. Silence of the present Settlement record on the point carries the matter no further either way. In my opinion the plaintiff's case was prima facie proved by the evidence on the record, and it stands unrebutted. The decree of the lower Court, is, therefore, perfectly correct. The appeal fails and is dismissed with costs. I extend the time for payment to the 3rd of March 1911.