1. This is a defendant's appeal arising out of a suit for pre-emption. The plaintiff based his claim on the strength of an entry in the wajib-ul-arz, under which in the case of a sale of a share the first right was given to biradaran karibi ekjaddi, and then to co-sharers in the thok and after them to co-sharers of other thoks, and it provided that in case the co-sharers of a village do not take, then the property could be sold to a stranger. The plaintiff is a co-sharer in the village but is no relation of the vendor. The defendent-vendee has been found to be the own uncle of the vendor but he is not a co-sharer in the village. The Courts below have decreed the suit, holding that a custom of pre-emption prevails in this village and that the defendant not being a co-sharer, does not come under the first class of pre-emptors and, therefore, the plaintiff has a preferential right even as against him,
2. The defendant has some up in appeal to this Court and on his behalf the findings of the lower Appellate Court are challenged. In our opinion the expression biralaran karibi ekraddi is a wide expression and might include own unales. That being so, the defendant would have a preferential right as against the plaintiff. It is, however, contended that the latter portion of the wajib-ul-arz, which says that in case none of the co-sharers of the village take the property then it can be sold to a stranger, would confine the right to parsons who are co-sharers. This, in our opinion, may not necessarily be the case. The plaintiff had to establish a custom under which he had a preferential right as against the defendant, who was the own uncle of the vendor and came within the class biradaran kaubi ekjaddi. The document on which he relies does not conclusively give him a preferential right and, in this view, we think that the burden which lay on the plaintiff has not been discharged; that is to say, he has failed to prove a custom under which he has a right of pre emption as against a person who is a karibi ekjaddi of the vendor though he is not a co-sharer in the village. This appeal is allowed, the decrees of the Courts below are set aside and the plaintiff's suit is dismissed with costs in all Courts, including in this Court fees on the higher scale.