1. This appeal arises out of a suit for pre-emption. The plaintiffs alleged that a custom of preemption prevailed and that one of the vendees, although he had an equal right with the plaintiffs, had lost his right by joining with him in the sale a person, who though a co-sharer had an inferior right to the plaintiffs. The defendants alleged that there was no custom of pre-emption and that the joining of a person, who was a co-sharer, although his right was inferior, did not entitle the plaintiff to pre-emption even on the assumption that a custom of pre-emption prevailed in the mahal. Neither side gave oral evidence but there was adduced in evidence the wajib-ul-arz of 1833, the wajib-ul-arz of 1860 and certain decrees in some of which it was held that a custom existed and in others that it did not exist. The learned Munsif considered the evidence carefully and came to the conclusion that the custom existed. He also held that the joining in the purchase of a person who had inferior rights to the plaintiffs forfeited the right of the vendee whose right was equal to that of the plaintiffs.
2. The learned District Judge's judgment is not so satisfactory. He decided the case entirely on the words of the wajib-ul-arz of 1860. In this, we think he was wrong. He ought to have considered the evidence adduced by both parties and come to a conclusion whether or not the custom existed. As, however, we have all the evidence before us, we think that there is no necessity, especially where no oral evidence was adduced, to put the parties to the unnecessary expense of a further hearing. Mr. Parmeshwor Dayal has called our attention to the history of the village in the Kaifiyat Nizamat, which he strongly relies upon as showing that no custom existed. He has also called our attention to the fact that the decree in which the custom was upheld was a compromise decree. The wajib-ul-arz of 1833 states the right of pre-emption in general terms. The wajib-ul-arz of 1860 states it with much more particularity. It gives a right, first, to a near co-sharer and, secondly, to a co-sharer in the thok. The defendant No. 1 is a co-sharer in the same khata with the plaintiff. The other vendee is a co-sharer in the same those but in a different khata. We think both the Courts below were correct in holding that a co-sharer in the same khata was a nearer co-sharer than a co-sharer in another khata though in the same thok. We also think that if we assume the custom of preemption to exist, a vendee, although having an equal right with the plaintiff, loses his right when he brings in as a co-vendee a co-sharer, having an inferior right. It is urged that the bringing in of a co-sharer, even though his right is inferior, is very different from introducing a stranger. It is admitted that the introduction of a stranger forfeits the right of the co-sharer against whom pre-emption is sought. We, however, can recognise no distinction in principle between the introduction of a stranger and the introduction of a person having an inferior right to the pre-emptor. If it were otherwise, pre-emption as between co-sharers could always be defeated if one co-sharer having an equal right could be induced to join in the purchase.
3. The question remains whether or not we should hold that the custom of pre emption has been proved to exist. With regard to the litigation, it shows this much that the right of pre-emption has constantly being claimed. Unfortunately, it would appear that the question was never tried out in any previous litigation in the way. We think it ought to have been tried out, namely by hearing and considering the evidence adduced by the parties pro and con. The cases were generally decided solely upon the actual words appearing in the wajib-ul-arz and, as we know, it very seldom happens that any two Judges take precisely the same view of the meaning of those words. We, therefore, think that, in the circumstances of the present case, the reference to the previous litigation shows little more than that the right of pre-emption has been from time to time claimed. In our opinion, and on the authority of Returaji Dubain v. Pahalwan Bhagat 33 A. 196 : 7 Ind. Cas. 680 : 7 A.L.J. 1040, the reference to the right of pre-emption in these two wajib-ul-araiz raised a prima facie case that a custom of pre-emption prevailed on the village. It is said that the history of the village, as set forth in the Kaifiyat Nazamat, shows that no custom of pre-emption could ever have arisen and this is sufficient to rebut the prima facie case established by the plaintiffs.
4. Having carefully considered this document, we do not think that in the present case it does rebut the plaintiffs' case.
5. The history of the village shows that the zemindari is a very old one. So far as the Kaifiyat Nizamat goes, it does not show that there was ever a transfer or sale subsequent to the year 1833. There were auction-purchases but in these cases the right of pre-emption would not be set up. It is urged that the property came into the single possession of a Raja in 1220 Fasli. Even this is not very conclusive, because we find the next Settlement was not made with the Raja but apparently with the same family who were the proprietors before the Raja came in. It is, therefore, probable that the Raja's interest was of a temporary character. On the whole, we think that the plaintiff established the existence of the custom of pre-emption he set up. This being so, the decree of the Court below was correct. We accordingly dismiss the appeal with costs.