1. This is a second appeal in a suit for pre-emption. The plaintiff claims as a co-sharer under a custom recorded in the wajib-ul-arz of the year 1874 A.D. It is admitted that according to this wajib-ul-arz a co-sharer in the same mahal with the vendor would have a right of pre-emption against another, person resident in the same village, even though that other person might be a co-sharer in a different mahal. Since this wajib-ul-arz was drawn up, however, there has been a partition. The former mahals were broken up and new mahals formed. Before the partition the vendees and the vendor were m the same mahal, Since the partition the vendor and the plaintiff are in the same mahal and the vendees are not.
2. The Courts below have held themselves bound by the decision in Daria v. Harkhial (l). They understand that decision as meaning that the effect of a partition under circumstances like the present is to put an end to any custom of pre-emption that might exist as between co-sharers in the same mahal and to place all co-sharers in the village on one and the same footing.
3. In that case the decision seems to have been that the vendees and the plaintiff who claimed pre-emption, were both in the position of mere co-sharers in the village, so that neither had a preferential right against the other. This case was considered by the Pre-emption Bench of this Court in Pem Singh v. Dharam Singh 12 Ind. Cas. 177 : 8 A.L.J. 1013. The learned Judges did not in terms dissent from Daria v. Harkhial 2 Ind. Cas. 208 : 6 A.L.J. 180 : 31 A. 274 but they distinguished against it upon a statement of the fasts found which it is not easy to verify from the published report of the case. There does not however, seem to be any room for doubt regarding the principle which the learned Judges intended to lay down in Pem Singh v. Dharam Singh 12 Ind. Cas. 177 : 8 A.L.J. 1013. They held in effect that, in the absence of evidence to the contrary, the old custom regarding pre-emption, whatever that custom might be would continue after the partition. The point to be determined would always remain as to what that custom was. But in the present case, as in the case of Pem Singh v. Dharam Singh 12 Ind. Cas. 177 : 8 A.L.J. 1013, there is no doubt that there was a right of pre-emption in favour of co-sharers in one and the same mahal as against persons who were not co-sharers in that mahal. According to this principle, therefore, the plaintiff, from the moment when he became a co-sharer in the same mahal with the defendant-vendor, became entitled, by virtue of the custom, to a right of pre-emption in case of a sale by the said defendant-vendor to any person other than a co-sharer in the same mahal. This ruling does not seem to have been brought to the notice of the Courts below. Granting, for the sake of argument, that the principles laid down in the two rulings above referred to are not to be easily reconciled, the later ruling seems preferable, as being a decision by the Pre-emption Bench and also because the facts of the case are more precisely on all fours with those of the present case.
4. Before, however, we could dispose of the appeal on this ground, it was necessary for us to consider a further plea on the part of the defendants vendees, in respect of which an issue was framed but not decided in the Court of first instance. The said vendees pleaded, as an alternative case, that they had a preferential right as against the plaintiff under the very custom recorded in the old wazib-ul-arz, because they were qarabat mandan qaribi of the vendor. To this Jokhan Singh, the plaintiff, seems to have pleaded by way of re-joinder that he was himself a nearer relative of the vendor than were the vendees, if the question of relationship arose at all. We have examined the evidence but, in any case, we think that the relationship set up by the defendants-vendees was too distant to entitle them to succeed as qarabat mandan qaribi, even if we came to a finding that the evidence in support of the pedigree set up by them was to be preferred to the evidence produced on behalf of the plaintiff.
5. The Only other possible question is that of the sale consideration; but, under the circumstances, and in order to put an end to the litigation, we think it best to adopt the finding of the first Court which was accepted by the plaintiff pre-emptor. The result is, that we set aside the decrees of both the Courts below and in lieu thereof direct that the plaintiff be given a decree for pre-emption in the usual form, subject to his paying into Court for the benefit of the vendees, within three months, the sum of Rs. 920. In the event of his so doing, his claim for pre-emption will stand decreed with costs throughout. If payment is not made within the prescribed period, the suit will stand dismissed with costs.