1. This is a plaintiffs appeal arising out of a suit for pre-emption. The plaintiff alleged that there was a custom of pre-emption in the village under which he was entitled to pre-empt the sale by the vendor in favour of the defendant vendee who was said to be a stranger. The vendee defendant No. 1 denied the existence of the custom and also pleaded that he himself was a co-sharer in the mahal and, therefore, on the same footing as the plaintiff pre-emptor.
2. The Court of first instance came to the conclusion that no custom had been established at all and that the entry in the wajib-ul-arz relied upon by the plaintiff was a record of contract and not of custom. It, however, held that the defendant No. 1 was not a co-sharer in the same mahal, and that even if there had been a custom he would not have been on the same footing as the pre-emptor.
3. The lower Appellate Court has upheld the decree of the Court of first instance but differed from it on both its findings. It has found that the custom is established but that the defendant vendee is also a co-sharer in the mahal and that, therefore, the plaintiff has no preference.
4. As to the question of the existence of non-existence of a custom it may be noted that the evidence consists of an entry in the wajib-ul-arz prepared at the Settlement of 1881. The district, however, is a permanently settled district and that Settlement is still in force. There is nothing to rebut the presumption raised from this entry except the circumstance that there is an express entry in the wajib-ul-arz of one of the other mahals, which was carved out of the original village prior to the year 1881, that the co-sharers had a perfect right of transfer. This in our opinion does not necessarily negative the presumption of a custom in the mahal in suit; for it may well he that the co-sharers of the other mahal had agreed to abrogate the custom which might have been in existence from before. We are, therefore, not entitled to take into consideration the non-existence of such a right in the neighbouring mahal. We see no reason to differ from the view taken by the learned District Judge that the plaintiff has established by prima facie evidence that the custom of pre-emption prevails in the mahal.
5. The main question in controversy is whether the defendant vendee is or is not a co-sharer in the same mahal so as to defeat the right of the plaintiff. Under the terms of the custom as recorded in the wajib-ul-arz the first right of pre-emption is given to a co-sharer who is a member of the family of the vendor (sharik khandan) and then to the co-sharers of the village. The plaintiff claimed to be a distant relation of the vendor, but that point has not been gone into by the Court below and in the view which we take of the case it is not necessary for us to decide that point. The defendant vendee, however, claimed to be a co-sharer in the mahal. A 'hissedar' means a co-sharer, that is to say, a person who owns a share in the mahal. A 'mahal' is ordinarily divided into 'annas' and 'pies' share or into 'bighas' and 'biswas' share. It comprises a certain specified area. A person who owns a fractional share in the 16 annas or a fractional share in the 20 biswas necessarily owns a share in the joint khalsa land as a co-sharer. But there may be proprietors, who have proprietary interests in the mahal and yet do not own a fractional share of the 16 annas or of the 20 biswas, as the case may be. That this is so is shown by a number of, cases decided by this Court; [vide Mawasi v. Moolchand 14 Ind. Cas. 278 : 9 A.L.J. 670 : 34 A. 434, Mahadeo Prasad v. Jagar Deogir 33 Ind. Cas. 23 : 14 A.L.J. 313 : 38 A. 260 and Izzat Husain Khan v. Ram Chander 59 Ind. Cas. 366 : 18 A.L.J. 120 : 2 U.P.L.R. (A) 39].
6. The main question to consider, therefore, is whether the defendant vendee owns a fractional share of the 16 annas in this mahal.
7. A reference to the khewat shows that the constitution of the village is as follows: Against serial No. 1 the extent of the share is recorded as 16 annas and the area is 56 24 acres and the Government revenue is Rs. 191-15-1. Under this serial number follows a list of three groups of co-sharers against whose names separate shares to the extent of 6 annas 4 pies and 16 krants, 6 annas 4 pies and 16 krants, and 3 annas 2 pies and 8 krants, are respectively recorded. The total of these three fractional shares is 16 annas. It is obvious that the group of proprietors mentioned under serial No. 1 own among themselves the entire 16 annas comprised in this mahal. After serial No. I there are other serial numbers, namely, Nos. 2 to 9, against each of which in the share column there is no entry whatsoever, but in the area column specified areas are recorded. Two of the proprietors mentioned therein are the Municipal Board and the Government. There is the Government revenue of Rs. 14 recorded at the end of serial No. 9. The learned District Judge has come to the conclusion that this represents the Government revenue payable on account of serial numbers 2 to 9. Whether that is so or not and whether the revenue of Rs. 14 is confined to serial No. 9 alone, it is not necessary for us to decide. But it is not disputed that this sum of Rs. 14 is no part of Rs. 191-15-1 which are assessed on serial No. 1. Below all these figures we have the grand totals in areas and in the Government revenue, but the 16 annas share is not repeated. On a consideration of the entries in the khewat it is clear, to us that it is only the proprietors mentioned under, serial No. 1 who own the entire 16 annas among themselves. It follows, therefore, that no proprietor in serial Nos. 2 to 9. can be said to own any part of the 16 annas of the khalsa land which are exhausted in serial No. 1. The owners of the areas in serial Nos. 2 to 9, although proprietors, cannot, therefore, be called co-sharers, that is, persons who own specified shares in the 16 annas. They are liable to pay Government revenues which are assessed against their shares, but they cannot, be deemed to have engaged for the payment of any part of Rs. 191-15-1 which is the Government revenue assessed on the 16 annas share described under serial. No. 1. The defendant vendee cannot, therefore, claim to be a hissedar on the same footing, as the plaintiff pre-emptor. In this view we are supported by the ruling of Radha Kishen v. Abbasi, Begam 64 Ind. Cas. 480 : 19 A.L.J. 859 where the distinction between a mere proprietor and a co-sharer was very clearly drawn.
8. It is also to be noted that both the Courts below described the properties entered under serial Nos. 2 to 9 as 'haqiat-i-mutafarriqa', that is to say, miscellaneous properties. They did not describe these as a part or a fractional share of the 16 annas of the mahal. '
9. In our opinion, therefore, the finding of the learned District Judge that there is a custom of pre-emption should be upheld and so also the finding of the First Court that the defendant vendee is not a co-sharer in the 16 annas of the mahal, and is, therefore, not a hissedar within the meaning of the wajib-ul-arz.
10. The result, therefore, is that this appeal is allowed and the decrees of both the Courts below are set aside and the plaintiff's claim for pre-emption is decreed on payment of a sum of Rs. 2,000 on or before the 2nd of July 1924. In case of such payment the plaintiff will be entitled to his costs in all the Courts including in this Court fees on the higher scale, from the defendant vendee. In case of default of payment the suit shall stand dismissed with costs in all the Courts.