1. This appeal arises out of a suit for pre-emption. The village is now divided into five mahals. A certain individual, proprietor in one mahal, made an exchange with the proprietors in another mahal of certain plots of land. The plaintiff is a co-sharer in a third mahal, that is to say, in the events which have happened he is neither a co-sharer with the transferor nor with the transferee. The plaintiff adduced in support of his case the zamima khewat of 1233 Fasli. This document provides as follows: 'When any sharer wishes to transfer his rights, he can transfer first to a near relative (rishtadar karibi), after him to a distant relative (rishtadar baidi), and after him to sharers in the village (shurkain deh). In the event of those persons refusing, the transferor shall have power to sell or mortgage to whom he pleases.' Then follow these words: Sharers (hissadaran) and sharers in the village (shurkain deh) shall be considered to have preference on condition that they are willing to pay the same price as a stranger is paying.'
2. Oral evidence to the same effect was given.
3. Both the Courts below have given the plaintiff a decree. Assuming for the purposes of this appeal that pre-emption extends to a case like the present, namely, that of a mere exchange of certain specified plots, and assuming also in favour of the plaintiff that the entry in the zamima khewat is sufficient to establish the existence of some custom of pre-emption, the question remains whether or not the evidence is sufficient to establish a custom of pre-emption which gives a right to a person who is not a co-sharer at all with the transferor. We have already pointed out in many cases how closely connected with pre-emption is the question of co-ownership. In our opinion, a custom giving a right to a person who is not a co-owner with the transferor is extremely improbable and unlikely. In the present case, the concluding words of the extract from the Wajib-ul-arz,in our judgment,clearly show that the right which the document was recording was a right prevailing amongst co-owners. In the events which have happened, as already mentioned, the plaintiff is no longer a co-owner with the transferor, although it is true that he is a near relation. Under these circumstances, we consider that the evidence was not sufficient to establish the existence of a custom tinder which the plaintiff is entitled to pre-empt the property.
4. We accordingly allow the appeal, set aside the decree of both the Courts below and dismiss the plaintiff's claim with costs in all Courts including in this Court fees on the higher scale.