1. This appeal arises out of a suit for pre-emption. The plaintiffs alleged that they were co-sharers not only in the same thok but in the same patti as the vendor, while the vendees were co-sharers in the same thok but not in the same patti with the vendor. The only evidence the plaintiffs appear to have adduced in support of the alleged custom was the wajib-ul-arz of 1842, and certain judgments bearing on the interpretation of the clause in this wajib-ul-arz.
2. The Court of first instance seems to have presumed for the purposes of the case in the plaintiffs' favour that a custom of pre-emption existed. It then went on to consider whether or not on the terms of the wajib-ul-arz the plaintiffs had a preferential right over the defendants. It held that the plaintiffs had no such right and dismissed the suit.
3. On appeal to the District Judge, the latter approached the consideration of the case entirely on a consideration of the actual terms of the wajib-ularz and held that under the terms of the wajib-ul-arz the plaintiffs had a preferential right over the defendants and remanded the suit to the Court of first instance for disposal.
4. The defendants come here in first appeal from the order of remand. The clause in the wajib-ul-arz is that, 'A co-sharer wishing to sell or mortgage his share should first inform his co-sharers of the thok and the patti khas and afterwards co-sharers of the village'. In our opinion, neither the Court of first instance, nor the lower Appellate Court, has approached the consideration of the case in a proper way. The question before the Court was as to the existence or non-existence of a custom of pre-emption giving a preferential right of pre-emption to a co-sharer in the same patti and thok over co-sharers in the same thok but not in the same patti. The existence or non-existence of this custom does not depend upon the construction of the wajib-ul-arz. The wajib-ul-arz is merely evidence. But, in our opinion, a plaintiff coming into Court could not prove the existence of a custom of the nature claimed in the present suit by the mere production of an obscure clause in the wajib-ul-arz. That the clause in the present wajib-ul-arz is obscure is abundantly shown from the fact that different Judges not only of Subordinate Courts but also of the High Court have interpreted it in different ways, Edge, C.J., and Banerji, J., in one of the very judgments relied upon by the lower Appellate Court, describe the clause as obscure. As we pointed out in the case of Ganga Singh v. Chedi Lal 33 A. 605 : 12 Ind. Cas. 98 : 8 A.L.J. 996 the existence or non-existence of a custom of pre-emption must be proved in the same manner as any other question. The proper issue in the case is does or does not the particular custom alleged by the plaintiff exist'? The onus of proving the existence of that custom lies on the plaintiff, and, in our opinion, if he can give no evidence other than the clause in the wajib-ul-arz he will have failed to prove the existence of the custom.
5. The Court will, of course, be entitled to consider the wajib-ul-arz but taken by itself it is, in our opinion, in the circumstances of the present case, insufficient. We have thought it right to mention these matters because, while we agree that the case ought to be remanded for trial upon the merits, we do not agree with the learned Judge, in so far as he has decided the question solely on the words of the wajib-ul-arz. The Court of first instance in dealing with the case on remand will pay attention to the remarks we have made as to what the real issue in the case is.
6. We discharge the order of the lower Appellate Court and remand the case to the Court of first instance with directions to proceed to hear and determine the same having regard to what we have said above. The Court will receive such further evidence as the parties may adduce. Costs of both parties will be costs in the cause. Costs in this Court will include fees on the higher scale.