Rafiq and Piggott, JJ.
1. This appeal is from an order of remand made by the lower appellate court under Order XLI, Rule 23. It appears that Munna Rai executed a deed of sale in favour of Basdeo Rai and Sat Narain Rai in respect of certain immovable property, Jhagru Rai sued to recover the said property by right of pre-emption. Jhagru alleged in his plaint that a custom of pre-emption obtained in the village in which the property in dispute was situate and that he, being a co-sharer, had a preferential right over the vendees, who were strangers. The court of first instance found that the custom alleged in the plaint had not been proved. The claim was accordingly dismissed. On appeal by the pre-emptor, it was contended on his behalf, though nO such ground was taken in the memorandum of appeal, that inasmuch as there was a mention of pre-emption in the zamima khewat, the pre-emptor was still entitled to succeed, if not on the ground of custom, at least on the ground of contract. The lower appellate court acceded to the contention and, setting aside the decree, remanded the case for trial on the merits. The vendees in appeal to this Court challenge the order of remand and contend that the lower appellate court should not have accepted the contention of the pre-emptor, and if it did, it should have remanded the case to the court of first instance, directing the amendment of the plaint and the framing of an issue with regard to the alleged contract of pre-emption, and then the case should have, been disposed of. In support of his contention the learned Counsel for the vendees refers us to the case of Ram Gharib Tewari v. Shankar Tewari (1921) 20 A.L.J.,15. The case relied upon by the appellants before us does bear out the contention for them to a certain extent. In that case the first appellate court had decreed the claim of the pre-emptor, holding that though he had failed to prove the alleged custom of pre-emption yet the wajib-ul-arz could be construed to contain a contract of custom and, as the period of the wajib-ul-arz had not expired, the contract would be considered to be still in force. The facts of the present case are slightly different. In the present case, the lower appellate court has not decreed the claim of the pre-emptor on the basis of contract, but has only remanded the case to the first court for trial on the merits. We, however, think that the contention of the appellants is so far correct that the lower appellate court should not have recorded a finding to the effect that the contract of pre-emption stood proved as between the parties. If the lower appellate court was inclined to think that the paper upon which the plaintiff pre-emptor relied evidenced a contract, and that that contract was still in force at the time that the disputed sale was made and the present suit instituted, the plaintiff pre-emptor should have been allowed to amend his plaint and the case should have been remanded for trial on the amended plaint. We, therefore, allow the appeal and modify the order of the court below to this extent that the case will go back to the first court for trial with permission to the plaintiff pre-emptor to amend his plaint, basing his claim on the ground of contract. The defendants vendees would, of course, be allowed to urge their defence to the new plea and to give evidence if they think in necessary. With this modification the order of the court below is affirmed. As to costs, we think the costs should abide the event.