1. This is a plaintiff's appeal arising out of a suit for pre-emption in respect of a sale-deed dated the 27th February 1919 executed by the delendant No.2 in favour of Babu Lai, defendant No.1. The plaintiff frankly confessed that he was neither a co-sharer in the village nor a relation of the vendor. Sis claim was based entirely on the ground that he was a resident (bashinda) of the village Mahwat in which the property sold was situated. It was alleged that there was a custom prevailing in this village under which, in case co-sharers refused to pre-empt, the right of preemption was given to residents of the village.
2. In the written statement the defendant-vendee admitted paragraph 1 of the plaint which had stated that the plaintiff was a resident of the village in question. It was, however, disputed that there was any such custom in existence. The plaintiff's allegation as to the incorrect recital of the sale consideration was also challenged.
3. The learned Subordinate Judge framed several issues, issues Nos. 2 and 3 of which were directed to the question whether a custom of pre-emption in favour of a mere resident, who was not a co-sharer, was proved or could be enforced in law. He came to the conclusion that no such custom had been established by the evidence produced in this case and that, in any case, such a custom would be uncertain and unreasonable and, therefore, incapable of being enforced by a Court of Law. He accordingly dismissed the suit without going into the question of the correct price of the disputed property.
4. The plaintiff has come up in appeal to this Court and on his behalf the findings are challenged.
5. The evidence produced in support of the custom consisted of a wajib-ul-arz of the year 1871, paragraph 15 of which contains the following reoital:
If a share-holder wants to sell his property he should sell it first to his near co-sharer and in case he does not take it, then he should -sell it to other co-sharer and if he also does not take it then he should sell it to the inhabitants of the village. In case no co-sharer and no inhabitant of the village takes it, the vendor has power to sell it to any one he may like. The rate of value will be according to the quality of the share. If any co-sharer, in order to deprive the nearer co-sharer, fraudulently declares an excessive amount of price, then the matter relating to the proper amount of consideration would be settled by private partition or under an order of the officer and the amount would be caused to be given.
6. This wajib-ul-ars was veriefied on the 8th September 1871 when the Board's Circular No.24 of 1868 was in force. In paragraph 9 of this Circular there was a direction that the wajib-ul-ars should be a record of custom and usages prevalent in the district. It is apparent that an entry relating to a right of preemption in the inhabitants of the village could not in all probability have been a record of contract. Inhabitants who were not co-sharers in the village were no parties to the wajib-ul-arz and it is not likely that co-sharers would enter into a contract with them. Either, therefore, this entry was an entry of a custom prevailing in this village or it was a useless entry made at the desire of attesting co-sharers. It has been laid down by their Lordships of the Privy Council in the case of Digambar Singh v. Ahmad Sayeed Khan 28 Ind. Cas. 34 : 13 A.L.J. 236 : 19 C.W.N. 393 : 17 M.L.T. 193 : 2 L.W. 303 : 21 C.L.J. 237 : 28 M.L.J. 556 : 17 Bom. L.R. 393 : (1915) M.W.N. 581 : 42 I.A. 10 : 87 A. 129 (P.C.). that an entry in a wajib-ul-arz is vrima facie evidence of the existence of a custom. Unless, therefore, there is anything in the wajib-ul-arz itself which negatives the idea of such an existence or there is other evidence to the contrary or such custom is unreasonabe and unenforcible, the presumption would be that such a custom exists.
7. Another piece of evidence relied upon in the Court below was a judgment of the District Judge of Aligarh dated the 9th of May 1917. That was a suit arising out of a sale of a share in another village, Pans, which, however, is situated in the same parganah Etah Sakit, Tahsil and district Etah, where the property in the present suit is situated. There the plaintiff was not a co-sharer at ail, but was a blacksmith. The learned District Judge in allowing the appeal remarked that it was contended by the Counsel for the respondent that the custom was unreasonable inasmuch as Bale, the plaintiff pre-emptor, was an artisan. He could not see anything unreasonable in the custom and saw no reason why a neighbour residing in the same village should not be given preference to an outsider; nor did he consider the fact that no recent exercise of the right of pre-emption had taken place to have any bearing on the case. In this view he allowed the appeal and decreed the suit.
8. The defendant-vendee filed an appeal to this Court, which was numbered as Section A. 1111 of 1917 and was disposed of by the Pre-emption Bench on the 15th January 1918, the judgment and decree of the. District Judge being confirmed. It is apparent that on that occasion at least both the District Judge and this Court did not consider that such a custom was so unreasonable as not to be enforcible in a Court of Law. This litigation, as it related to an other village, is of value for this purpose only.
9. So far as we can find, there has been only one recent sale in this village, on which, according to the oral evidence, Earn Sarup a co-sharer did bring a suit and got a decree. That circumstance neither helps the present plaintiff, nor does it in any way negative the existence of the custom relied upon by him.
10. It has been strongly contended that the custom set up is unreasonable and should not be enforced. A custom of pre-emption may either prevail in a certain locality or may govern a particular community. In/the present case the plaintiff's case is that 'this custom governs the community which consists of the residents of a village and it prevails in the area which is defined by that village. Such a custom has once at least been enforced in the neighbourhod. We do nob think that such a custom is unnecessarily unreasonable or unenforoible. For the enforcement of a right of pre-emption under a custom it is not necessary that the pre-emptor should be a proprietor. In numerous oases the right of a mere relation to enforce a custom has been recognised by the Courts.
11. The last point urged in support of the decree was that it had not been established that the plaintiff was a resident in that very mahal in which the share sold was situated. This was a question of fact which ought to have been raised in the Court below. The plaintiff's residence in the village was admitted in the written statement and no plea was raised that he was not a person who came within the expresson bashindgan village as recited in the wajib-ul-arz. We think that this question of fact should not now be allowed to be raised.
12. As the learned Subordinate Judge has disposed of the suit on a preliminary ground only and we are not prepared to uphold his finding, we allow this appeal, set aside the decree of the Court below, and remand the case for disposal of the suit by decision of Issue No. 4. Issue No. 1 has already been disposed of by implication. Costs here and hitherto will be costs in the cause and will abide the result. Costs in this Court will include fees on the higher scale.