(MIRZA) IMDAD HUSSAIN Vs. MIRZA HAIDAR BEG

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption. The plaintiff alleged that there was a custom of pre-emption in the village under which ha was entitled to pre-empt the sale by the vendee in favour of the defendant vendee who was said to be a stranger. The vendee defendant No. 1 denied the existence of the custom and also pleaded that be himself was a co-sharer in the mahal and therefore on the same footing as the plaintiff pre-emptor.

(2.) The Court of first instance came to the conclusion that no custom had been established at all and that the entry in the wajib-ul-arz relied upon by the plaintiff was a record of contract and not of custom It however held that the defendant No. 1 was not a co-sharer in the same mahal, and that even if there had been a custom he would not have been on the same footing as the pre-emptor.

(3.) The lower Appellate Court has upheld the decree of the Court of first instance but differed from it on both its findings. It has found that the custom is established but that the defendant vendee is also a co-sharer in the mahal and that therefore the plaintiff has no preference.