1. This appeal arises out of a suit for pre-emption. The Munsif decided that a custom, of pre-emption did exist and decreed the plaintiff's suit. On appeal the learned District Judge held that there was no custom of pre-emption and accordingly dismissed the plaintiff's suit without deciding the other issue, namely, what was the sale price. In support of the allegation that a custom of pre-emption prevailed, the plaintiff produced an extract from the Wajib-ul-arz of 1879 and also two judgments, one of which was between the same parties as in the present suit. As against this the defendant produced no evidence except an extract from the Wajib-ul-arz of 1833. This admittedly proves nothing either way. At that time Government had taken over the zemindari evidently for non-payment of revenue. The learned Subordinate Judge in dealing with the Wajib-ul-arz of 1879 points out that it was only to remain in force from 1879 to 1900, and states that this fact clearly shows that the reference to pre-emption, must be a reference to an arrangement between the co-sharers, and is not and cannot be a record of a custom. In our opinion this is wrong. The mere fact that the Wajib-ul-arz was for a settlement which was to continue only from 1879 to 1900 did not prevent the co-sharers from recording therein their customs. A reference to the document will show that it purports to be a record not only of contracts but also of customs and when referring to pre-emption, it actually speaks of the custom of pre-emption. Prima facie (according to the rulings of this Court) references to pre-emption are to be taken as references to customs rather than to contracts. The Wajib-ul-arz of 1879 is supported by two judgments. Even if the judgment in Suit No. 397 of 1911 be not regarded as res judicata, it is very strong evidence in the present case because it was between the same parties and about property situate in the same mahal. The custom was alleged and not even denied, and it also appears that the final result of the case was that preemption was decreed. It seems to us that the evidence in the present case was all the one way and that the learned Subordinate Judge was wrong in setting aside the decree of the Court of first instance. Before, however, finally deciding the appeal we must remand an issue to the Court below as to the real consideration. We, accordingly, refer the following issue, namely, what was the true sale consideration? The Court will decide this matter upon the evidence already on the record. The case will be put up on return of the finding. The usual 10 days will be allowed for filing objections.
2. On return of the findings the appeal was decreed.