1. This was a suit for preemption based upon village custom. It was resisted partly on the ground of limitation and partly by denial of the custom set up by the plaintiffs, while there was also an issue as to the amount of consideration. The Court of first instance dismissed the suit upon a single finding, namely, that the plaintiffs had failed to prove the custom set up by them. The lower appellate Court first admitted in evidence a certain document (a copy of an extract from the wajib-ul-arz of 1833), which it held the plaintiffs ought to have been allowed to produce in the first Court, and then reversed the finding on the only issue hitherto tried, holding that the custom relied on by the plaintiffs was satisfactorily proved by the evidence on the record. The case was remanded under the provisions of Section 562 (Act XIV of 1882) and against this order no appeal was preferred. The learned Munsif on taking up the case again found for the plaintiffs on the issue of limitation and decreed their claim for pre-emption subject to the payment of a certain sum. The suit then went up again on first appeal to the learned Additional Subordinate Judge. He found, he had only two issues to dispose of one on the plea of limitation and one as to the actual consideration paid. He notes in his judgment that the plea in the memorandum of appeal on the point of limitation was not pressed. As a matter of fact it could not be. A part of the property sold was already mortgaged with possession to the vendee, and the whole was consequently not capable of physical possession at the time of the sale, so that the limitation period must undoubtedly be reckoned from the date of the registration of the deed of sale. The case is exactly covered by the ruling referred to by the learned Munsif. Dal Chand v. Naubat Singh A.W.N. (1892) 77. On the question of consideration the lower appellate Court upheld the finding of the Court of first instance. Now it seems to be settled law in this Court that the defendant vendee cannot, under the circumstances above stated, be permitted to contest the validity of the order of remand under Section 562 of the Civil Procedure Code unless he also challenges the validity of the final decree on grounds independent of those upon which the order of remand was based. Vide Sheo Nath Singh v. Ram Din Singh 18 A. 19, as interpreted in the subsequent rulings reported in Dhari Upadhia v. Rausham Chaudhri A.W.N. (1899) 136 and Sher Singh v. Diwan Singh A.W.N. (1900) 109, in the memorandum actually presented by the defendant vendee to this Court, there are four paragraphs, the first three of which simply challenge the validity of the order of remand under Section 562 of the Code of Civil Procedure while the fourth repeats the plea of limitation which was 'not pressed' on first appeal. I should be inclined to hold that this case falls within the spirit of the rulings above referred to but as I have heard the parties on the merits, I prefer to dispose of the appeal on other grounds. The plea of limitation I have already shown to be futile. The admission of additional evidence by the lower appellate Court was well within the discretion of that Court, and indeed would seem to have proceeded on very satisfactory grounds. There remains, therefore, only the question whether or not the lower appellate Court was right at the time of its remand order under Section 562 of the Civil Procedure Code, in holding that the custom of pre-emption set up by the plaintiff was sufficiently proved by the documentary evidence on the record, namely, the provisions as to pre-emption found in the wnjtb-ul-arz of 1833 A.D. and in that of 1860 A.D. I am asked by the appellant to interpret these provisions as recording a contract and not a custom. 1 have been referred to a number of rulings of this Court, but I prefer to base my decision in the main upon a single case, the judgment of a single judge of this Court in the case of Ram Pershad Misser v. Babu Mahadeo Parshad 3 Iud. Cas. 640. It was a case like the present from the Gorakhpur District, it proceeded on very similar evidence, and it gives a very clear summary of the general effect of previous rulings of this Court. It was strongly relied upon by the appellant in this case, who contended that upon the principles therein set forth, the wajib-ul-arz in the present case must also be regarded as setting forth a contract and not a custom. In my opinion the evidence now before me differs in two important respects from that before my learned colleague in the reported case. It is evident that he laid great stress on the fact that the pre-emption right recorded in the later wajib-ul-arz before him differed in its incidents from that in the earlier; in the present case the right recorded is identical. My brother Tudball also placed considerable reliance on the preamble of the older wajib-ul-arz in evidence before him. I may venture to say that I feel some doubt as to the extent to which the preambles of such documents, as prepared at the settlement of 1833 A.D. in the Gorakhpur District, can properly be relied upon with reference to this particular question of contract or custom, as I believe it has been found that they were usually prepared throughout the district in accordance with a certain prescribed form or model. I think it sufficient, however, to say that in this case the preamble of the wajib-ul-arz was not put in evidence by either party. I hold that the documents as they stand contain no words or expressions which definitely stamp them as records of contract, and that the lower appellate Court was right especially in view of the uniformity of the, incidence of the right as recorded in 1833 and again in 1860 A.D., in presuming the record to be one of established custom rather than of contract.
2. On these grounds I dismiss this appeal with costs, including fees on the higher scale.