1. This references raises a somewhat difficult question but, as we understand the matter, we are asked to say whether the law relating to pre-emption, as laid down in a ruling of Mr. Giles, officiating Commissioner of Kumaon, in the case of Datt Bam v. Baghunath, decided on the llth July 1892, is or is not to be applied to the case with which we are concerned.
2. It seems that both the Deputy Commissioner and the Commissioner sitting in appeal have differentiated this case from the one which was considered by Mr. Giles in the ruling just referred to.
3. Taking the law to have been correcty laid down in Mr. Giles' judgment, we find it stated as follows :
For the purposes of pre-emption the asl village and the laga village are one. A hissedar of a laga village' has no right of pre-emption against a purchaser who is a hissedar of the asl village.
4. If this ruling is to be applied literally to the facts of the case with which we are now dealing, it seems to us that the claim of the pre-emptor in this case must be disallowed, for his status, at best, appears to be merely that of a hissedar of a lag a village whereas the person who is now the purchaser of the property, namely, Amla Nand, is a hissedar of the asl village.
5. We have been referred to a tittle book called, the Manual of Land Tenures in the Kumaon Division compiled by Mr. Stowell.
6. In this book we find an asl inausa defined as being the chief or parent village to which the lagas or subsidiary villages, are attached. The definition winds up by saying that the asl village and lagas are held under one revenue, euagement
7. Reading the judgment of Mr. Giles in the light of his definition, we take it as laying down, therefore, that where the asl village and the laga village arc held under one revenue enagement the hissedar of the laga, village is not entitled to pre-empt against the hissedar of the asl village.
8. It is said, however, in the present case that the village Bauthiya, in which the property sold is situated, doet'not really stand to Khandoli, the village in which the purchaser Amla Nand resides, in the relation of a laga to an asl village. In the judgment of the first Appellate Court this village Eauthiya is described as pakka khaikar laga and it is said that it has its own separate Settlement map and 'phant.' Mr. Mason, the Deputy Commissioner, (District Judge), describes Eauthiya as being really a separate fiscal unit.
9. It is not clear from this description whether the learned District Judge intended to find that Eauthiya was separately assessed to revenue and was not included in the same revenue engagement as the other village Khandoli.
10. The Commissioner, as Judge of the High Court of Kumaon, agrees with the opinion of the first Appellate Court. Indeed, his judgment would lead us to believe that he intended to find that this village of Eauthiya is not at all a alaga village but a village quite independent of the other village of Khandoli. In his judgment the learned Commissioner is unable to say how this village came to be recorded in the revenue papers as a laga or off-shoot of Khandoli. He certainly seems to 'think that it can be nothing of the sort.
11. It appears to us that the whole question of the right of pre emption in this case turns upori the relation which is to be traced between these two villages Eauthiya and Khandoli. If they stand to each other in the true relationship of asl and laga villages, that is to say, if they are both held under one revenue engagement, then we are of opinion that the customary law as found by Mr. Giles in his judgment in Datt Bam v, Baghunath ought to be followed in this case. In other words, the claim of the , preemptor ought to fail and ought to be dismissed.
12. On the other hand, if it be the fact that these villages are not truly related as asl and laga villages but that the village of Eauthiya is a separate fiscal unit as described in the judgment of the first Appellate Court, then we are of opinion that the pre-emptor in this case has a better right than the purchaser Amla Nand.
13. We should like to add that a right of preemption must, in the absence of Statute, be 'Imsed either on contract or custom. No contract has been suggested in this case. Presumably, the right claimed is based on customary law. In the absence of any statutory enactment or any entry in a public record of right, the custom may be deduced from a long series of decisions. When a rule of custom is deduced from previous judgments we are of opinion that the rule deduced there from should in no way be departed from merely on the ground because it is now thought more equitable or convenient that a new rule should prevail.
14. As regards costs in this, Court we leave the parties to bear their own.