1. It appears that one Asa Ram executed a deed of sale in respect of some of Ins landed property in favour of Shyam Lal on the 26th October 1919, ,and the sale-deed was registered on the nth November 1919. On the 27th October 1920 the suit, out of which this appeal has arisen, was brought by Padam Singh, the plaintiff-respondent, for the recovery of the property conveyed by the deed of the 27th October 1919 on the ground of preemption. It was stated in the plaint that the custom of pre-emption prevailed in the village in which the property in suit was situate and under that custom a co-sharer had a preferential right of purchase to a stranger. The plaintiff was a co-sharer in the village with the vendor and the vendee was an absolute stranger.
2. The claim was resisted by the denial of the custom of pre-emption set out in the plaint. The Court of first instance decreed the claim and its decree was upheld in appeal.
3. The vendee has come up in second appeal to this Court and contends that the evidence on the record is insufficient to prove the custom alleged in the plaint. We find that there are three documents on the record which are relied upon by the plaintiff pre-emptor in support of his claim, namely, (1) the wajib-ul-arz of 1872, (2) a decree of 1859, and (3) a decree of 1920. A copy of the wajib-ul-arz is on the record but two of its paragraphs only are referred to in argument, namely, the 5th and the 14th. The 5th paragraph recites that in case of a transfer a co-sharer has a preferential right to a stranger. It further recites the rights of the widows inter se and the children by different wives and many other matters which cannot possibly be construed to refer to custom. The principal paragraph which mentions pre-emption is paragraph 14. All that it recites is that 'Haq-i-shuja jaiz hai,' in other words, 'the right of pre-emption is lawful.' None of the two paragraphs of the wajib-ul-arz bears out the case of the plaintiff pre-emptor. The recital of the right of a co-sharer over a stranger in paragraph 5 is not in any way connected with a custom of pre-emption. On the other hand, the words in paragraph 14 which mention the right of pre-emption simply mean that the co-sharers recognise that the right of pre-emption among themselves was lawful, i.e., that it could be enforced according to law. It has been held in this Court in two cases that, where the words in a wajib-ul-arz are 'that the right of pre-emption prevails' that means that the right of pre-emption can be asserted according to Muhammadan Law, Jagdam Sahai v. Mahabir Prasad 28 A. 60 : 2 A.L.J. 482 : A.W.N. (1905) 190. The decree of 1869 does not help the plaintiff pre-emptor for the simple reason that the question whether a custom of pre-emption, obtained in the village was not in issue in that case. In the litigation of 1920, it appears from the decree filed on the record that some of the defendants compromised the case and a decree was passed against the rest with regard to half the property in suit on the finding that the custom of pre-emption obtained in the village. The finding presumably was based upon the entries of the wajib-ul-arz mentioned above. The decree was made by the Munsif of Bulandshahr. No appeal was preferred from it. At the most, the decree of 1920 is an instance where the right of pre-emption was allowed. It cannot by itself be said; to be sufficient evidence to establish tie allegation of the plaintiff pre-emptor that the custom obtains in the village. In our, opinion this appeal ought to prevail. We, therefore, allow it and set aside the decree of the lower Court with costs to the vendee throughout.