1. This pre-emption appeal is up for admission under Order 41, Rule 11. The question in the Courts below was whether the plaintiff had a right of pre-emption under Section 5, Agra Pre-emption Act. It was pleaded by way of defence that there was no such right inasmuch as no custom recognizing pre-emption had been recorded in respect of the area in which the property sold was situate.
2. The first Court held in favour of this defence. The lower appellate Court held that there was a record of custom and that the plaintiff held a right under Section 5, Agra Pre-emption Act.
3. It appears that the lands in dispute are included in a very large mauza called Dhimsa in the Gorakhpur district. This mauza contains a number of tolas, and it is said that the lands with which we are concerned are situated in a tola named Bharpur. The case for the defence is that this tola Bharpur is a 16 annas unit and that as no record of rights is shown to have been prepared in respect of it-a record showing the prevalence of a custom of pre-emption-therefore, the plaintiff was out of Court.
4. The lower appellate Court, however, was of opinion that all these tolas were included in one mauza, mauza Dhimsa, and as the wajib-ul-arz of Dhimsa was produced and contained a record of custom it must be taken that this custom applied to all these sub-divisions which are described as tolas.
5. We may mention in the first place, that the word 'tola' does not ordinarily mean a sub-division of a mauza in the language of the revenue law. Tola ordinarily denotes a portion of a village or town which is inhabited by a particular class.
6. There is on the record a judgment in a previous case which was fought out under the old law of pre-emption. This case related to one of those tolas in mauza Dhimsa called tola Dubauli and we notice in the Munsif's judgment that this tola Dubauli was admitted before him to be what he calls an arazidari village of full 16 annas and which he thought was quite separate from mauza Dhimsa. These arazidari holdings are very common in one part of the Gorakhpur district and it was necessary a few years ago for the Pre-emption Bench in this Court to describe the nature of these arazidari holdings. The matter is fully discussed in the judgment of the Pre-emption Bench reported in Surwan Prasad Tewari v. Basdeo Narain Singh A.I.R. 1923 All. 129. There the definition of Mr. Reid, formerly a settlement Officer of Azamgarh, was referred to, according to which the term 'Arazi' means plots of land which, though included within the area of mauza and mahals, are held on a distinct tenure from, and convoy no title to, rights or interests in other parts of the mauzas and mahals. It is quite clear from this definition that arazidari lands do not constitute a separate revenue unit by themselves. They are lands included in a mahal or mauza, lands which are held on a peculiar tenure.
7. We would not, therefore, expect to find any separate record of rights drawn up in respect of these various tolas which are included within the ambit of this very large village called Dhimsa. We think the plaintiff is entitled to rely upon the custom recorded in the wajib-ul-arz of Dhimsa. That is the custom which governs the whole of this area including the area in which the land in dispute is situate. We are satisfied that the judgment of the lower appellate Court is correct and that the plaintiff had a right of pre-emption under Section 5, Agra Pre-emption Act. The appeal is dismissed under Order 41, Rule 11.