1. This is an appeal against an order of the Subordinate Judge of Pilibhit allowing an appeal from a decree and order of the trial Court remanding the case for decision on the remaining issues. The order covers two suits for the preemption of two different properties in the town of Pilibhit. The parties to the suit are Hindus. The plaintiff-respondent claimed that there was a custom of preemption in the Kasba of Pilibhit, and based his suit on that custom. It was denied by the defendant-appellant that any such custom existed. The trial Court found that the custom had been proved, but that it had fallen into-disuse. The lower appellate Court while agreeing that the custom had been proved, disagreed with the decision that it had fallen into disuse, and therefore required the trial Court to proceed to come to a finding on the remaining issues. It has been argued on behalf of the appellant that the decisions of both the Courts below that the custom of pre-emption had been proved are wrong, inasmuch as the entry in the wajib-ul-arz, on which the decisions are largely based, is so vague as to be Unintelligible or at any rate unenforceable. The words used in the wajib-ul-arz of 1868 for the Kasba of Pilibhit are as follows:
Rules as to the right of pre-emption. There is a custom of pre-emption in accordance with the usage of the country and the Shastras. (Dastur saafa bamujib rewaj-i-mulk wa Shastra ke.
2. It as argued that the words 'bamujib rewaj-i-mulk' in themselves are too vague to enbody a custom and further that an ambiguity is introduced by the addition of the words 'wa Shastra ke,' inasmuch as the right of pre-emption; is one that was originally unknown to the early Hindu law; so that the reference to Shastras, whether the meaning of that term be Hindu law or, as Mr. Upadhiya would have it, a much wider one, makes the entry entirely meaningless. It is perfectly true that in a number of cases a plaintiff has failed to establish a right of pre-emption because the entry in the wajib-ul-arz on which he relied has been found to be not sufficiently definite or clear to establish his right. The specific cases. to which I have been referred follows : Jahangira v. Amir Singh 1914 All. 52, in which a Bench of this Court held that the record in the wajib-ul-arz as to the custom of pre-emption is not the custom. It is a. mere record of custom, and if its language is ambiguous, it may when unsupported by other evidence be insufficient either to prove the custom as a whole or any particular incident of that custom. This was a case in which the custom of pre-emption was admitted, so that there was no issue as to whether the custom of pre-emption existed, though the incidents of that custom were disputed. It related to zemindary property, and herein a distinction must be made between zemindary property and property in towns.
3. It is admitted that the right of preemption is one that has been recognized by the Mahomedan law, and originally was limited to that law. Subsequently it was adopted by the Hindus, and became modified in different places I by local usage. Thus in different villages the custom of pre-emption began to vary and the incidents of it differed from place to place. In towns however so far as my experience goes and as far as is shown by the cases to which my attention has been directed, the right recognized by the Mahomedan law has not become modified by local custom. In Jahangira v. Amir Singh 1914 All. 52, the question that was raised related to the incidents of the custom, the plaintiff was concerned to prove that he came, under a particular category, and it was held that he had not been able to prove this because the wording of the wajib-ul-arz was ambiguous. In Muhammad Mahbub Ali Khan v. Raghubar Dayal 1915 All. 423, it was similarly held that it was necessary for the plaintiff to prove a custom under which he had a right. It was not sufficient to prove the existence of some custom of preemption, but the existence of a custom under which the plaintiff came into one of the categories of preemptors. This again related to zamindary property. In Muhammad Razi-ud-Din v. Raghubar Prasad 1918 All. 376, to which I have also been referred, the wajib-ul-arz did not record a custom at all, and in Ram Chand v. Goswami Ram Puri 1923 All. 513, there was no wajib-ul-arz in evidence. The last case of this kind to which I have been referred was that of Nageshar Prasad v. Ram Harakh Pande 1924 All. 541, in which the property was zamindary property, and the ambiguity in the language of the wajib-ul-arz related to the incidents of the custom and not to the existence of the custom itself.
4. In the present case it is evident from the words that I have quoted above that the entry in the wajib-ul-arz does not give any incidents and does not describe any categories into which pre-emption are to be divided. It merely records the fact that a custom of preemption exists. It is however argued that the words themselves create an ambiguity as to the nature of the custom. In Zamir Husain v. Daulat Ram (1882) 5 All. 110, it was held by a Bench of this Court that where the custom of pre-emption exists it must be presumed to be founded on, and co-extensive with the Mahomedan law upon that subject, unless the contrary be shown; that the Court may as between Hindus, administer a modification of law as to the circumstances under which the right may be claimed, if it is shown that the custom in that respect does not go the whole length of the Mahomedan law of pre-emption (p. 113):
It may therefore be safely laid down that in all cases in which the right of pre-emption is claimed the Courts in administering equity will, by analogy follow the rules of the Mahomedan law of pre-emption even in cases where the right is not claimed under that law, but under local usage or custom. The rules of customary preemption no doubt depend upon the custom itself, but where such custom is silent upon any particular point, the rule of the Mahomedan law of pre-emption upon that point must by analogy, be taken to be the rule of decision.
5. In Ram Prasad v. Prasad v. Abdul Karim (1887) 9 All. 513, it was held that in the absence of evidence of any special custom different from, or not coextensive with, the Mahomedan law of pre-emption that law must be applied to the case. The words in the wajib-ul-arz of a village gave a right of preemption 'according to the usage of the country.' This is an expression very similar to that in the present case with the exception of the words 'wa Shastra ke.' In fact this last decision is good authority for holding that a right of pre-emption in accordance with the usage of the country is clear and definite enough to form proof of a custom. Similar opinions as to the general principle have been, expressed more recently by this Court in the cases of Jagadam Sahai v. Mahabir Prasad (1906) 28 All. 60 and Chakauri Devi v. Sundari Devi (1906) 28 All. 590.
6. The only question therefore is whether the words 'wa Shastra ke' introduce such an element of ambiguity or confusion into the record that the whole of the entry must be discarded as being too vague to form the definition of a custom. Neither the trial Court nor the lower appellate Court has really found any difficulty in interpreting the expression. It is of course possible that the object of these three additional words was to show that the ordinary rule of Mahomedan law was to be modified by some local custom, Hindu or otherwise, such as is frequently to be found in the wajib-ul-arzes of zamin-dary villages. If this were so, it might be argued that the words do not show in what way the modification is to be understood. The words 'wa Shastra ke' however do not convey any reference to local custom, nor has any attempt been made either on behalf of the appellant or the respondent to explain what they may mean. The state of the law being as I have described above, it appears to me that unless the appellant could show that the ordinary-rule of Mahomedan law as to be modified by these words, that rule must be held to apply in this case and the custom of pre-emption, which it is clearly the intention of the wajib-ul-arz to record must therefore be the custom as understood in Mahomedan law.
7. It has also been argued on behalf of the appellant in support of the decision of the trial Court that even if a custom originally existed it has fallen into disuse. There was evidence, apart from the entry in the wajib-ul-arz to prove not only that a custom had existed, but that it had continued to be in existence quite recently. That evidence consists of five judgments dated, 1869, 1902, 1930 and two of 1931, in which the custom of pre-emption was claimed and either admitted or else contested and maintained by the Court. Two sale-deeds were also filed, one of which however was returned and is no longer on the record. The remaining one is dated 1880 (Ex. 6), and it contains a recital that the vendee had a right of pre-emption. There were also witnesses on both sides to testify to the existence of the custom and to its non-existence. The latter however were only able to show that in a number of instances transfers had taken place in favour of strangers, without a right of pre-emption being claimed. There is however good authority for holding that this is not sufficient to disprove the existence of a custom or to prove that a custom which has been proved has fallen into disuse. In Bhawani Singh v. Makhan Lal 1924 All. 791, it was held that the assumption that there had been transfers to strangers could not necessarily negative the existence of the custom. It might well be that those sales were not objectionable to the co-sharers or that the purchasers had offered prices so high as to-make it impossible for the co-sharers to outbid them. Similarly in Chaunni v. Rafiunnisha Begam 1918 All. 547, it was held that where a custom is proved to exist, that custom, must be held to continue and the onus to prove discontinuance of that custom lies upon the party denying its existence. It is quite clear to my mind that in the present case the evidence brought to prove that the custom had fallen into disuse is quite inadequate, and that the decision of the lower appellate Court is perfectly correct. The appeal is therefore dismissed with costs.