1. This appeal arises out of a suit brought by the plaintiff-respondent, Rambaran Singh, on the 18th May 1920, for the recovery of possession of certain property conveyed by the sale-deed of the 20th of May 1919, executed by Damri Singh, in favour of the defendants-appellants on the ground of preemption. The claim was resisted on various grounds. One of the objections taken to the claim was that no custom of preemption obtained in the village in which the property in suit is situate. The Court of first instance dismissed the claim. On appeal by the pre-emptor, Rambaran Singh, the learned District Judge took a different view of the evidence and decreed the claim.
2. The vendees have come up in second appeal to this Court and contend that the evidence in support of the alleged custom is insufficient to establish the custom set up in the plaint. We have on the record the kaifiyat mahtavi of 1833. It shows that the village was waste up to 1220 Fasli when it was settled with a man of the name of Sheo Baksh Singh. On the other hand, the kaifiyat nizamat of 1860 shows that the village was waste up to 1813 A. D. when it was settled with Sheo Baksh Singh. It may, therefore, be taken that the village was waste up to 1812 A. D. and then it was settled with Sheo Baksh Singh. The latter, in order to clear the jungle and bring land into cultivation, seems to have granted birt pattas to several people. Their number had' increased by 1833 when a settlement was made of the village. We have got the wajib-ul-araiz of 1833 on the record. One of them relates to the superior rights and the other to the rights of the birt-holders. In the wajib-ul-arz relating to the superior proprietors there is no restriction placed on the right of a proprietor to transfer his malikana rights. In the case of the birtdars, their wajib-ul-araiz contain a condition to the effect that in case of a transfer by a birtdar, he must give the first refusal to another birtdar. The Wajib-ul-arz of 1860 relating to the rights, of the birtdars repeats the same condition but with variations. According to the Wajib-ul-arz of 1860, in case of a transfer by sale of his birt by a birt-holder, he should offer it first to a near co-sharer, and in case of the refusal of the latter, to the co-sharer of the thok, and, in case of his refusal, to any other, co-sharer in the village. By the word 'co-sharer' no doubt is. meant the birt holder and not the superior proprietor. It is further, stated that other considerations will govern a transfer by mortgage. They are not mentioned in the paragraph a certified copy of which is produced before us. It is obvious from the entries in the Wajib-ul-arz of 1833, the kaifiyat mahtavi of 1833 and the Wajib-ul-arz of 1860, that the restriction placed upon the transfer by a birtdar was not due to any custom obtaining among the Birt-holders. The most that can be said is that in 1833 the birt-holders agreed between themselves that in case of a transfer the first refusal was to be given to a co-sharer. In 1860 the original contract of 1833 was varied by introducing the preferential right of a near co-sharer and then of the co-sharers of the these and last of all of the co-sharers of the village. There seems to have been a new contract between the birt-holders in. 1860. The Settlement of 1860 has come to an end and we do not know whether the contract of 1860 has been renewed at the new Settlement. No papers of the new Settlement have been put before us. In any case the plaintiff-respondent, Rambaran, has not proved his allegation that the custom of pre-emption obtains in the village in which the property in dispute ' is situate. The appeal, therefore, succeeds and we allow it. The decree of the lower Court is set aside and that of the first Court is restored with costs to the defendants-appellants throughout.