1. This is a pre-emption appeal and raises only one question of law, because the other questions involved in the suit have not been decided by the lower appellate Court. The plaintiff who is the appellant before us, based his suit on Section 5, Agra Pre-emption Act, and in order to comply with the requirements of that section produced an extract from the Wajibularz containing an entry as regards preemption.
2. The Court of first instance decreed the claim on condition of payment of Rs. 1,900. There was an appeal and there was a cross-objection. The defendant's appeal succeeded on the ground that the entry in the Wajibularz read with Section 5, Agra Pre-emption Act, did not allow the plaintiff to maintain the suit. Section 5, Agra Preemption Act, lays down that
a right of pre-emption shall be deemed to exist only in mahals or villages in respect of which any Wajibularz prepared prior to the commencement of this Act records a custom, contract or declaration :(a) recognizing, conferring or declaring a right of pre-emption, expressly or by necessary implication, whatever its extent and in whatever form it may be expressed, etc.
3. The extract from the Wajibularz that has been produced runs as follows:
Dastur darbab haq shafa-shafa ka koi khas dastur nshin hai-Bamaujib rawciz mulk aur sharake hai.
4. Translated this would mean :
Custom of pre-emption.' There is no particular rule of (based on) custom in this village, but there is one, according to the custom of the country and the Mahomedan law.
5. In our opinion this statement in the Wajibularz contains a declaration that there is a custom of pre-emption, though the entry proceeds to limit its significance by saying that pre-emption can be had only according to the custom of preemption obtained in the country and under the terms of the Mahomedan law. This being our reading of the entry in the 'Wajibularz, we are of opinion that clause (a), Section 5, Agra Pre-emption Act, has been complied with, and it must be held,and we do hold, that the plaintiff has a right of pre-emption. This view of ours is in accordance with the view taken in Shyam Lal v. Divarha Prasad : AIR1927All277 and Rameshar Prasad Lai v. Ghisiawan Prasad : AIR1929All531
6. As the other questions involved in the appeal before the lower appellate Court have not been decided, we allow the appeal, set aside the decree of the Court below and send back the appeal to the learned District Judge for decision according to law. Costs here and hitherto will abide the result.