1. This is a plaintiff's appeal arising out of a suit for pre-emption. The plaintiff owns khewat 7 which consists of an isolated plot which is a resumed muafi. The property sold consists of plots in khewat 18 which also are resumed muafi lands. The learned Judge has found that these are petty proprietary interests and do not represent zamindari shares in the mahals.
2. The plaintiff produced a wajib-ul-arz of 1872 which contains a record of custom. The lower appellate Court has gone into the provisions of the wajib-ul-arz and discussed its various clauses and then come to the conclusion that the entry in it did not relate to these muafi lands. He has further found that the plaintiff's case would fail on the terms of the wajib-ul-arz. As regards Section 12, Pre-emption Act, he has thought that the question did not arise in this case. He has accordingly dismissed the suit.
3. In our opinion the judgment of the Court below is wrong on both the points, though the decree is right. Once the plaintiff showed that there was a wajib-ul-arz prepared relating to this mahal which contained a record recognizing a right of pre-emption, whatever its extent and in whatever form expressed, the Court ought to have presumed under Section 5 of the Act that there was a custom of pre-emption. From that moment the entry in the wajib-ul-arz ceased to be of any significance. The custom which is presumed to exist is the custom which is specified in Section 12 of the Act and no other custom. Under Section 12 of the Act a petty proprietor has preference if he is a coparcener in the proprietary interest sold. In such cases he is given preference over even cosharars. But he must be a coparcener in the very interest which has been sold and not merely a petty proprietor of any other lands. In the present case the plaintiff is not a coparcener in the interest which has been sold, namely the plots in khewat 18. He does not come under Clause 1 specified in the section. On this point the suit should have been dismissed. The appeal is accordingly dismissed with costs including in this Court fees on the higher scale.