1. This is a defendant-vendee's appeal arising out of a suit for pre-emption. The plaintiffs alleged that there was custom of pre-emption in the mahal in which the shares sold were situated and according to it they had a preference against the defendant, who also was a co-sharer in the same mahal. The defendant denied the existence of the custom and also denied that the plaintiffs had any preference over him.
2. The Court of first instance found that the plaintiffs and the vendor were co-sharers in one and the same patti but that the defendant-vendee was a co-sharer in another patti though situated in the same thok. It held that there was a custom of preemption in the village, and was of opinion that the plaintiffs being nearer in space had a preferential right over the defendant. That decree was affirmed by the lower Appellate Court. The lower Appellate Court, however, confused the meaning of thok with a 'revenue-paying unit' as it calls it. It thought that the plaintiffs and the vendor were co-sharers in one and the same thok and the vendee was co-sharer in a different thok. This view obviously was incorrect. We have examined the khewat as well as the statement of the patwari on which the Court below relies and we have no doubt, whatsoever, that, all the three persons are co-sharers in one and the same thok though the plaintiffs and the vendor are also co-sharers in a subdivision of that thok.
3. There can be no doubt that the custom of pre-emption exists in this village. We have the wajib-ul-arzes of the years 1833 and 1860 both of which recite the existence of such a custom. In addition to these the plaintiffs produced a judgment dated the 15th May 1914, in which a custom of preemption was upheld. There is no contradiction in the terms of the wajib-ul-arzes of 1833 and 1860, the latter being a fuller one and there is absolutely nothing else to rebut the presumption.
4. The learned Vakil for the appellant refers to certain matters in Clause (5) of the wajib-ul-arz of 1860 but those matters are not such as cannot possibly be records of custom. Under these circumstances we think the view taken by the Courts below that a custom of pre-emption exists in this mahal is correct.
5. Now remains the question whether the plaintiffs have preference over the defendant. Admittedly the defendant is a co-sharer in the same mahal. The plaintiffs had to produce unambiguous evidence to prove that, under a custom which prevails in this mahal, they, being co-sharers nearer in space, had preference over the defendant who is also a co-sharer in the same thok. In order to prove such a special custom they relied on the wajib-ul-arzes of 1833 and 1860 and a judgment of the year 1914. As to the judgment of the year 1914 we can dispose of it at once. In that case the plaintiff-claimant happened to be both a blood-relation of the vendor as well as a co-sharer in a smaller sub-division. The Court accordingly held that in either view of the case, namely, whether the word hissedar karibi used in the wajib-ul-arz referred to a co-sharer nearer in space or to a co-sharer nearer in blood-relationship he had a preferential right. That judgment, therefore, is absolutely inconclusive.
6. According to the wajib-ul-arz of 1860 the right of pre-emption was given:
(1)to hissedar karibi (near co-sharers).
(2)to dusre hissedaran thok (other co-sharers in the thok).
(3)to hissedar dusre thok (co-sharers of other thoks).
7. In order to succeed the plaintiffs must show that the expression hissedar karibi necessarily means a co-sharer who is nearer in space with the vendor. It has been held in various cases that the word hissedar karibi by itself is an ambiguous expression and may apply either to a co-sharer who is hearer in space or a co-sharer who is nearer in blood-relationship. Of coarse, if the context of the wajib-ul-arz makes it quite clear that it has the one meaning and not the other then the plaintiffs would succeed. In the present case, however, we are unable to say that the expression hissedar karibi in the wajib-ul-arz necessarily means a co-sharer nearer in space and not nearer in blood-relationship. The only evidence on which the plaintiffs rely is this ambiguous entry in the wajib-ul-arz of 1860 which, in our opinion, is not sufficient to establish the custom on which the plaintiffs came into Court, viz., that a co-sharer in a patti has preference over a co-sharer in the same thok. In this view of the matter this appeal must be allowed with costs including in this Court fees on the higher scale.