1. This is a plaintiffs' appeal arising out of a suit for pre-emption. The plaintiffs, in support of the alleged custom of pre-emption, produced records of three successive Settlements, viz. of 1833, 1860 and 1292-3 F. corresponding to 1886, in all of which the custom of pre-emption was recorded. As regards the last Settlement, it has been pointed out in several cases that this Settlement took place under the terms contained in the Board's Circular issued on the 24th August 1886, for Gorakhpur and Basti, under which in cases of mahals belonging to persons other than Muhammadans, the Settlement Officer could not make an entry of custom unless the proprietors not only expressly demanded that it should be noted, but also proved conclusively that the custom existed. In view of this provision in the Board's Circular the record of the entry of custom in the year 1886 is of considerable importance and raises a very strong presumption indeed: see Nandan Singh v. Guptar Singh AIR 1924 All 424. In addition to these records the plaintiffs produced some judgments and decrees of Courts where claims for pre-emptions had been decreed. In one judgment, at any rate, it was expressly found that the custom of preemption did exist. It lay on the defendants vendees to rebut this evidence.
2. The only circumstance, on which the lower Court has relied, in order to come to the conclusion that the presumption has been rebutted, is that the village in question has been owned by the same family from a very early time. There is no suggestion in the judgment that it has been owned by a single proprietor exclusively at any time within recent years. The mere fact that the property has remained in one family does not negative he existence of a custom. The learned Subordinate Judge has thought that, because the plaintiffs have not shown that there were any transfers inter vivos since 1292 F, no custom could grow up. This view is not sound. A custom may exist and may be so strong as to prevent proprietors from breaking it and transferring property. The fact, therefore, that no transfer has taken place to outsiders far a long time does not necessarily negative the existence of a custom of pre-emption. The learned Subordinate Judge has started from the wrong end. He should have presumed that the custom existed in 1886 and is continuing, unless that was rebutted. There is no satisfactory rebutting evidence.
3. As the case has been disposed of on one point only, we allow this appeal and setting aside the decree of the lower Court, remand the case to that Court for disposal according to law. The costs will abide the result and will include fees in this Court on the higher scale.