1. This is a defendant's appeal arising out of a suit for pre-emption. The plaintiff relied on an extract from a wajib-ul-arz and neither he nor the defendants filed a complete khewat to explain the Constitution of the village. A complete khewat has now been produced under our direction.
2. The property sold is situate within the Municipal limits of Jalesar, and as held under the order, dated the 27th of May, 1927, the Act does not apply to it and the case is governed by the Customary Law if any.
3. The property sold consists of a share in a milak consisting of resumed muafi lands. An examination of the khewat makes it quite clear that the body of co sharers, whose names are shown against serial number own the entire (sic) biswas in. the mahal. After them come (sic), who own these milaks and who (sic) serially numbered, but against their (sic) no fractional share is entered in (sic) of shares. It is, therefore, (sic) that these proprietors do not own any (sic) share in the 20 biswas of the mahal and therefore, are not co-sharers in the mahal.
4. Merely because the printed heading of the claim has stated 'Name of patti or khewat', the Court below has assumed that all these other proprietors own property in separate pattis. This is a wholly erroneous assumption. A patti is a subdivision of a mahal in an imperiect partition and represents a distinct fractional part of a mahal. This is not the case here. These proprietors are not co-sharers in the patti at all.
5. The translation of the entry in the wajib-ul-arz on which the plaintiff relies, is given by the learned District Judge, and it is clear that a partner in the property can only have a right of pre eruption if he also happens to be a brother, a nephew or a cousin; but if he is not any such relation, he must be a hissedar paiti. As remarked above, the plaintiff is not a hissedar or a co-sharer at all, and has, therefore, no right to sue under the alleged custom, vide Radha Kishun v. Abbasi Begam 64 Ind. Cas. 480 : 19 A.L.J. 859.
6. In the result we allow the appeal, set aside the decree of the lower Appellate Court and dismiss the plaintiff's suit with costs in all Courts including fees in this Court on the higher scale.