1. This is an appeal from an order of remand made by the lower Appellate Court in a suit to enforce a right of pre-emption. The suit was based upon the administration papers of the village. The Court of first instance held that these documents were the records of a contract in force during the period of settlement, and that the settlement having come to an end the contract was no longer in existence. It accordingly dismissed the plaintiff's suit. On appeal, the learned Subordinate Judge held that the documents were records of a custom and remanded the case to the Munsif for disposal on the merits. The defendant vendee comes here in appeal and we have to decide which of the Courts below took the correct view of the two wajib-ul-arzes which were put in.
2. After hearing the case fu(sic) argued and referring to the terms of the documents we are of opinion that the view of The first Court is right. The first wajib-ul-arz was one drawn up in 1862. In our opinion it is impossible to construe this document as other than the record of a contract. The signatories to the documents say 'we file this agreement of khewat with entry of the terms set forth below in order that this may be acted upon until the expiry of the period of settlement (ta miyad bandobast.)' Amongst the undermentioned terms we find conditions relating to the right of pre-emption. We find ourselves unable to hold, having regard to the language used, that this document was the record of a custom. Then there was prepared another wajib-ul-arz in 1873. The language of this document would apply as well to the record of a custom as of a contract; and if it stood alone, the presumption would be that it was the record of an existing custom. But having regard to the language used in the previous wajib-ul-arz, we find ourselves unable to hold that this wajib-ul-arz was the record of a pre-existing custom. We, therefore, think that the Court of First Instance was right. We allow the appeal and setting aside the decree and order of the lower Appellate Court, we restore the decree of the Court of the First Instance. The appellant will have his costs here and in the Court below.