KALI CHARAN Vs. KHAYALI RAM

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-emption. The plaintiff is not a co-sharer in the mahal, although he is a proprietor in the village. The vendees also are not co-sharers in the same mahal. They are stated to be grove-holders in another mahal. The plaintiff adduced in evidence an entry in the wajib-ul-arz of 1873. THIS records that there is a right of pre-emption, first, with own brothers and nephews, then with cousins who arc co-sharers, then, with co-sharers in the patti and then with co-sharers in the village. At that time the village consisted of one mahal, which was sub-divided into two pattis. We may point out here that the court below has made a very important mistake. It states that the village was then divided into two mahals. The other evidence in support of the existence of the custom consisted of the wajib-ul-arz which was framed at the last settlement. By this time the village had been divided into a number of different mahals and at the time of the, settlement a new wajib-ul-arz was drawn up for each of the new mahals in similar terms. In each of these wajib-ul-arzes it is recorded that the old custom should remain in force. The question is whether the plaintiff has proved by these two entries the existence of a custom which gave him a right to pre-empt this property against the defendants, he not being a co-sharer in the same mahal, We agree that, whatever the custom was prior to the partition, it still continued. We have to see what that Custom was. The only evidence being the entry in the wajib-ul-arz, we must look to this document in order to find out what the custom (if any) was. It is not contended in the present case that either parties are related to the vendor. Therefore that part of the wajib-ul-arz which refers to relationship may be loft out of consideration. It is quite clear that the remaining part refers entirely to a custom existing between co-sharers because at that time all the proprietors in the village were co-sharers with each, other. In the events which have happened the plaintiff is no longer a co-sharer with the vendor. He has ceased to have any community of interest with him. In this view it seems perfectly clear that there was no evidence of the existence of a custom between persons who are not co -sharers. After partition has taken place the owner in one mahal is no longer able to bring himself within the custom where the property sold is situate in the other mahal. We allow the appeal, set aside the decrees of both the courts below and dismiss the plaintiffs suit with costs in all courts.