1. This is a defendants-vendees' appeal arising out of a suit for pre emption. The plaintiff is a co-sharer in the mahal, the defendants-vendees are not. The plaintiff alleged a custom, according to which he claimed to be entitled to pre-emption as against the defendants, The defendants pleaded, first of all, that there was no custom and, secondly, even taking it that there was a custom, as stated in the wajib-ul-arz and put forward by the plaintiff, the plaintiff had no right of pre eruption whatsoever thereunder. The Courts below have held that the custom established by the plaintiff gives him a right of pre-emption. The defendants appeal.
1. For the purposes of this decision we assume that there is some custom of pre-emption in the village. The question is whether the plaintiff by his evidence has shown that that custom is such as to give him a right of preemption. Two wajib-ul-arz were produced to establish the custom. The wajib-ul-arz of the Settlement of Mohar Singh set forth that if a co-sharer wished to sell his property, then his own brother or a co-sharer who was an eh jaddi with himself had a right to take the property and that if these classes did not take, then the co-sharer might sell it to any body else he pleased. In the wajib-ul-arz drawn up at the Settlement of Munshi Nasir Ali some ten years after that of Mohar Singh, the wajib-ul-arz again stated that if a co sharer wished to sell his property, then his own brother or his ek jaddi brother had a preferential right to take the property, but that if they did not take, then the co-sharer might sell it to any other co-sharer or to a stranger, if he pleased. This latter wajib-ul-arz clearly placed the stranger and other lasses of co-sharers on the same footing, As far as we can see, the custom set out in these two wajib-ul-arz is one and the same, that is a custom which gives to a co sharer's own brother or an ek jaddi brother as preferential right of purchase. But no other class of co-sharers apparently had any right whatsoever. The burden of proving a custom which gave him a right of pre-emption as against the defendant was upon the plaintiff. He produces two documents, according to the language of which he has no right of pre-emption as against the defendants. There were judgments produced in several cases in which the right of pre-emption had been decreed, but as urged on behalf of the appellants the plaintiffs in those cases were brothers either ek jaddi or haqiqi. In our opinion the plaintiff, who is admittedly neither a bhai haqiqi nor ek jaddi has not established by any evidence whatsoever any custom under which he has a preferential right of purchase as against a stranger, though he is a co-sharer in the mahal. We allow the appeal and set aside the decrees of the Courts below. The plaintiff's suit will stand dismissed with costs in all Courts, including in this Court fees on the higher scale.