1. There is no question in this case as to the existence of the right of pre-emption but the question is whether under custom as recorded, the plaintiffs had a better right to pre-empt than the vendee-appellant.
2. It appears that the plaintiffs pre-emptors are co sharers in the same khewat and patti with the vendor. The vendee on the other hand, is a co-sharer in a different thok.
3. The wajib-ul-arz lays down that a claim for pre-emption can be made when a co-sharer proposes to sell his property and it sets out a number of classes of parsons in order who will be entitled to claim preemption.
4. The first class entitled to pre-empt consists of own brothers; the second class of cousins and nephews; the third class, co-sharers in the same patti; the fourth class of co-shavers in the thok; and the last class consists of co-sharers in the village. It is not to be doubted that on the language of the wajib-ul-arz these classes are set out in order of preference; the strongest claim to preemption being awarded to the first class; the second strongest claim to the second class, and so on. After these classes have been mentioned, there is a statement in the wajib-ul-arz that if no person in any of the classes desires to take the property then the vendor is to be at liberty to sell to a stranger.
5. We have not the slightest doubt in our minds that the record, as here set out, does provide for pre-emption inter se between the various classes who are specified. It is only by holding this view that we can give full effect to the words, awwal, phir, phir.
6. The case of Mathura Singh v, Ram Lal Singh (1921) 19 A.L.J. 903 has boon referred to. There, on language which had some resemblance to the language which we are now considering, it was held that there was no right of pre-emption inter se between the classes of persons who are mentioned in the ivajib-ul-arz. It was held that a right to pre-empt only arose in case there was a sale to a stranger and that the recital in the wajib-ul-arz merely indicated the various grades of persons who could put forward a claim to pre-emption in case the sale was to a stranger.
7. We could not extend the principle of that decision beyond the facts as they are set out in the judgment of the reported case, and in fact in subsequent cases this judgment has been dissented from. An instance may be found in the cases repored in Dhanraj Misir v. Ramashwar Misir A.I.R. 1924 All. 227.
8. We think it clear that the judgment of the Court below in this case was correct and that on the terms of the wajib-ul-arz the plaintiff was entitled to preference over the defendant. The appeal therefore fails and we dismiss with costs including in this Court-fees on the higher scale.