1. This appeal arises out of a suit for pre-emption. The Court of first instance granted the plaintiff a decree. The lower Appellate Court reversed the decree of the Court of first instance and dismissed the plaintiffs' suit. Neither of the Courts below appear to us to have approached the consideration of the question of the existence or non-existence of the custom of pre-emption in quite a correct way. The lower Appellate Court appears not only not to have considered the question from the right point of view but also to have neglected to consider certain evidence on the record. In our opinion for pre-emption, based on alleged custom, the Court ought to be very careful to remember what the issue is. The issue is, not what is the true construction of the particular wajib-ul-arz, but, does the custom of pre-emption exist?' The wajib-ul-arz is a piece of evidence to be carefully considered but the construction of a particular expression in it is not the issue [See Ganga Singh v. Chedi Lal 12 Ind. Cas. 98 : 33 A. 60 5, 8 A.L.J. 996. In our opinion the Court should hear all the legal evidence produced by the plaintiff upon whom the onus lies of establishing the existence of the custom. This in the presentcase will involve a consideration of the entries in the wajib-ul-arz of 1833 and the entries in the wajib-ul-arzoi 1878, which are prima facie evidence that the custom exists.
2. If the plaintiff is able to adduce any further evidence (such as oases of sales to co-sharers, oases in which when sales had been made to strangers the right of pre-emption has been set up), the Court should consider this evidence. On the other hand if the defendant adduces evidence to show that no custom of preemption exists in the village, the Court is bound to consider that evidence. Such evidence may consist of the evidence of sales to strangers, the history of the village and other matters, which may show the improbability or impossibility of any custom ever having existed. (We may point out here that where sales are being proved, the original sale-deeds or certified copies should be produced and it should be proved who the vendees in those sales were).
3. After hearing the evidence on both sides the Court must come to the best conclusion it can as to the existence or non-existence of the custom alleged by the plaintiff, bearing in mind that the onus lies on the plaintiff. As, in our opinion, there has been no proper trial, we set aside the decree of the Court below and remand the case to that Court with directions to re-admit the appeal upon its original number and proceed to hear and determine the same according to law. In the event of the parties applying to the Court to be allowed to adduce further evidence, it will be within the discretion of the Court to allow such further evidence to be given. Costs including in this Court fees on the highest scale will be costs in the cause.