MAHADEO PRASAD Vs. JAGAR DEO GIR

JUDGEMENT

(1.) This is a defendant-vendee s appeal arising out of a pre-emption suit based on village custom, which has been decreed by the Court below. The last four pleas in the memorandum of appeal have not been pressed. The first three grounds of appeal raise only one question, viz., whether under the custom of pre-emption prevailing in the village of Amwa Singh, the plaintiff has any right at all to pre- empt the property in suit.

(2.) The custom on the point of pre-emption was not stated in the plaint. The plaintiff in paragraph I thereof alleged that he and the defendants 2nd party were co-sharers in the village, that a custom prevailed in the village, that the vendees were strangers and that as against them the plaintiff had a right of pre-emption under the wajib-ul-arz.

(3.) The plea taken before us by the vendees is that in the circumstances of this village the plaintiff is not a co-sharer with the vendors and is not entitled under the custom to preempt. Admittedly in the village of Amwa Singh, there is only one 1 6 anna mahal in which the plaintiff has no" share whatsoever. The vendors are the owners of the whole mahal and have by their sale-deed transferred to the vendees the "whole" of it. In short the vendors had no co-sharer with them, a fact of very great importance as we shall shortly show.