1. The lower Appellate Court has held in these three pre-emption suits that the plaintiff pre-emptor was not entitled to succeed on the ground that no custom of pre-emption is proved in the village.
2. According to what is set out in the lower Appellate Court's judgment, this village was confiscated by the Government during the Mutiny and a re-grant was made in the year 1859, when practically the whole village was granted to Uday Ram, with the exception of a small share amounting to one biswa odd. The learned Judge was, therefore, right in holding that when the re-grant was made, in the circumstances above mentioned, there could not have been any custom of pre-emption in existence. It seems that at some subsequent settlement made by M. Nasir Ali Khan, a record was made in the wajib-ul-aiz which purports to be a record of custom, but, as the learned Judge of the Court below observes, having regard to the history of the village, this record must be deemed to be a record of contract and not of custom.
3. It is argued that the lower Appellate Court has decided the case on a ground which was not taken in the First Court. That is not correct. It seems that the defendant raised the plea in the First Court that there was no custom of pre-emption at all. The Court of first instance did not decide this question but decided that, in any case, if there was a custom it could not relate to resumed muafi lands as the lands in suit. If, however, the plaintiff went in appeal to the Court below and raised the question of the existence of custom, he cannot complain if the learned Judge has decided the point, even if that decsion is against him. We think that the decision of the Court below is correct in all these three appeals and we dismiss the three appeals under Order XLI Rule 11