1. This is a defendants' appeal arising out of a suit for pre-emption. The Court of first instance dismissed the suit. On appeal the learned District Judge has decreed it. The plaintiffs, in order to prove the custom alleged, relied on an entry in the wajib-ul-arz of 1883 which prima facie raised a presumption of the existence of the custom. To rebut this evidence the defendants proved the fact that in the year 1840 there was a single proprietor in this mahal, and, further, that no suit for preemption had ever been brought between the years 1840 and 1882. The learned District Judge has considered all the circumstances in the case and has weighed the evidence. In our opinion the circumstance of there being a single proprietor in 1840 does not necessarily rebut the presumption of custom raised by the entry in the waiib-ul-arz of 1882; as the learned Judge has pointed out, it was admitted in the written statement, that there had been numerous is transfers and, therefore, it was possible that a custom might have grown up during that interval. In second appeal we find it impossible to hold that the learned Judge was wrong in holding that the evidence adduced by the plaintiffs had not been sufficiently rebutted.
2. The learned Vakil for the appellants relied on the case of Kulsumunnisa v. Khaslat Husain 50 Ind. Cas. 179 : 17 A.L.J. 345 : 1 U.P.L.R. (A.) 149. We may point out that in that case stress was laid on the circumstance that the learned Judge of the Court below was under a misapprehension on a question of law, namely; that the fact that the property once was in the hands of a single proprietor did not put an end to the custom. It was in view of that erroneous assumption that the Bench said that, in the peculiar circumstances of that case, a question of law did arise and they were justified in going behind the findings of facts.
3. The result is that the appeal fails and is dismissed under Order XLI, Rule 11.