1. This is a plaintiff's appeal arising out of a suit for pre-emption. The learned Subordinate Judge has dismissed the suit on the ground that though there is a custom of pre-emption prevailing in the village the plaintiff has not the right to pre-empt as against the vendee.
2. The plaintiff is not a co-sharer in the mahal in which the property sold is situate. He is, however, a proprietor in the village. The custom of pre-emption is recorded in the wajib ul-arz prepared about the year 1870 and is as follows:---'Every co-sharer has (a right) to transfer his haqiyat (property) by sale (first) to own brother and then to a qaribi ekjaddi (near rightful collateral) for a price which might be current at the time. If the transferor fixes a fictitious price in order to deprive the co-shares it will be caused to be settled by arbitrators. If no one wishes to purchase that property for the price fixed by the arbitrators, the proprietor shall be at liberty to sell it to any other co-sharer of the village or to a stranger. With the exception of mortgage by conditional sale every person is competent to mortgage otherwise. He may mortgage to anybody, he likes.' The learned Subordinate Judge has held that the person entitled to pre-empt must be a co-sharer with the vendor and on this ground has dismissed the suit.
3. In our opinion there are two points which are fatal to the appeal. In the first place the person entitled to pre-empt must be either an own brother or a qaribi ekjaddi (near rightful collateral). The plaintiff is admittedly not a brother of the vendor but claims to be qaribi ekjaddi. According to the pedigree set up by him the great great grandfather of the plaintiff and the vendor was the common ancestor. Thus the plaintiff and the vendor are at least 8 degrees apart. Under these circumstances it is impossible to hold that he is a near collateral of the vendor. In the case of Ganga Mai v. Ram Sarup Mal 58 lad. Cas. 87 : 2 U. P. L. R. (A.) 153. a Bench of this, Court held that, even in the case of Hindus, persons who were 7 or 8 degrees removed could not be called near relations. The present case is, therefore, much stronger and we find it impossible to hold that the plaintiff is a near relation of the vendor. He, therefore, cannot come within the category of the pre-emptors.
4. We also think that the view taken by the learned Subordinate Judge as to the true interpretation of the wajib-ul-arz is correct. Although the word 'co-sharer' does not follow the expression 'qaribi ekjaddi' yet reading the whole wajib-ul-arz we think that there can be no doubt that the idea was to give the right of pre-emption to a person who is a co-sharer. This view is supported by the language of the first paragraph of the wajib-ul-arz which contains the expression 58 lad. Cas. 87; 2 U. P. L. R. (A.) 153. 'If the transferor fixes a fictitious price in order to deprive the co-sharers and' (2) 'If no one wishes to purchase...the proprietor shall be at liberty to sell it to any other co-sharer of the village or to a stranger.'
5. In any case in order to establish an unusual or extraordinary custom which will entitle mere near relations who are not co-sharers to pre-empt the plaintiff has to produce unambiguous and positive evidence. The sole evidence in his favour is the entry in the wajib-ul-arz which is far from being unambiguous. We, therefore, find this evidence to be wholly insufficient to establish that a mere near relation without being a co-sharer has a right to preempt.
6. Lastly it is contended before us that the plaintiff is a hissedar within the meaning of the wajib-ul-arz as he is a proprietor in the village though he is not a co-sharer in the mahal. But the village having been partitioned into separate mahals, proprietors who merely own properties in the village, but in separate mahals cannot be deemed to be co-sharers of each other.
7. The appeal has no force. It is dismissed with costs including fees on the higher scale