1. This is a second appeal arising out of a suit for pre-emption by a Hindu pre-emptor of a house sold which is situated in mohalla Kauwa Tola in the city of Bareilly. In the plaint the plaintiff alleged that a custom of pre-emption prevailed in the entire city of Bareilly and especially in mohalla Azamnagar, whereof a number of 'mohallas' including Kauwa Tola formed part. The existence of the custom of pre-emption was denied by the defendants. The Court of first instance framed the issue: 'Is there any custom of pre-emption in the mohalla in suit,' and found that no such custom was established. In the grounds of appeal before the District Judge the plaintiff urged that the finding of the lower Court that the custom of pre-emption did not exist in mohalla Kauwa Tola was erroneous. The learned Judge's judgment also shows that he applied his mind principally to the question whether the alleged custom of pre-emption obtaining in the said mohalla (Kauwa Tola) did not exist. He agreed with the first Court and held that it was not established.
2. The question of the existence of custom is substantially a question of fact, and the finding would ordinarily be binding on us in second appeal. Of course, if the Court below has approached the question from a wrong standpoint or has thrown the burden of proof on the wrong party or has wrongly assumed a condition to be necessary, which is not required, the finding may be vitiated. Similarly, if it has acted upon illegal evidence or acted upon evidence which is legally insufficient to show that the custom is general and of universal application, the finding may be interfered with. Or if in any other way a proposition of law is mixed up with the finding, the latter may become a mixed question of fact and law. Acts found to done in pursuance of the alleged custom would be facts, but the conclusion whether the facts found fulfilled the requirements of the law may be a question of law. The learned advocate, in this case, urges that the learned Judge has approached the question from a wrong standpoint and has erred in law in throwing the burden on the plaintiff to prove the existence of the, custom in the particular locality, viz. mohalla Kauwa Tola, and has ignored the evidence relating to the prevalence of such a custom in the surrounding 'mohallas.' If such were the case, the finding would naturally be vitiated and it would be our duty to examine the whole evidence afresh.
3. It is possible to interpret the judgment of the lower appellate Court as implying that the evidence of the existence of the custom in the surrounding 'mohallas' should be altogether ignored and that the plaintiff is bound to show instances of pre-emption in that very mohallah. At the same time, it is possible that the learned Judge merely meant to hold that; such evidence was not legally sufficient to establish the custom in the 'mohalla'' in question. In this state of doubt we think it desirable to briefly examine the important pieces of evidence that have been adduced by either party.
4. In favour of the plaintiff there is a judgment of the Agra High Court of 1866, in which there was a remark that' the custom of pre-emption in the town of Bareilly was established. The judgment does not show that the question whether it applied to the whole town of Bareilly or not was directly in issue. There is a similar remark in the judgment of the District Judge of the year 1914; but that remark also is a general observation and there was no specific issue as to whether the custom prevailed in the whole town of Bareilly. There is also a similar remark in the judgment of the first Court in a suit which was finally decided by the High Court in 1921, which was partially endorsed by the District Judge; but the actual finding of the High Court did not turn on the existence of such a custom in the whole town of Bareilly. These judgments are, to some extent, in favour of the plaintiff, who also relies on a sale deed of 1855, in which there is a mention that the vendee, who was a resident of Azamnagar, known as Kauwa Tola, was the pre-emptor. The deed however does not show whether the right of pre-emption was based on the existence of any custom or any contract between the parties. The deed is therefore not of much importance.
5. As against these we have a judgment of the Subordinate Judge of Bareilly of the year 1885 in which the existence of the custom of pre-emption in mohalla Kauwa Tola itself was negatived. The judgment is in Urdu and is couched in a somewhat vague language. It is possible that the reasoning of the learned Subordinate Judge was not perfect, but there can be no doubt that in that suit the claim of pre-emption brought by a Hindu resident in mohalla Kauwa Tola on the strength of an alleged custom failed. We also find that in a judgment of 1927 the District Judge of Bareilly held that do such custom of pre-emption prevailed in mohalla Kucha Sita Ram situated in the town of Bareilly and adjoining Kauwa Tola. The judgments relied upon by the plaintiff with regard to other mohallas also show that attention was concentrated on the existence or non-existence of such a custom in those particular mohallas.
6. We must therefore accept the finding of both the Courts below that there is no universal custom established for the whole of Bareilly. It appears that the custom has been found to prevail in some mohallas but not in all. This being so, a mohalla is to be taken as a unit. As already pointed out, the frame of the issues, the grounds of appeal before the District Judge and the way in which the question was approached by him, go to 'show that stress was laid on behalf of the plaintiff on the existence of such a custom in mohalla Kauwa Tola. The evidence on the existence of custom in the surrounding mohallas cannot be of great weight when we find that at least in one of the adjoining mohallas, namely mohalla Kucha Sita Ram, it does not prevail.
7. If we confine our attention to the evidence which relates to mohalla Kauwa Tola itself, we find that on the one hand there is the vague recital in the sale deed of 1855, and on the other there is a judgment of the Subordinate Judge of 1885. The learned Munsif has also observed that several sale deeds were written in the mohalla but no instance of a claim of pre-emption has been shown.
8. We therefore, think that even if the finding of the lower appellate Court were not to be binding on us as a finding of fact, we should accept the concurrent conclusions of the two Courts. The appeal is accordingly dismissed with costs.