JUDGMENT Sinha, J.
1. This is an appeal by an unsuccessful pre-emptor whose suit for preemption has been dismissed by the Courts below. The facts briefly are these : On 11th February 1910, one Mirimal sold two plots of land in the town of Shamli, district Muzaffarnagar, Nos. 8967 and 3969, in favour of two men, Asa Ram and Jado Rai. The plaintiff whose name is also Asa Ram claimed preemption with respect to plot No. 3969 only as Shafi-khalit and Shafi-jar. He based his claim on his ownership of the adjacent plot No. 3970, which, along with the plot No. 3969, has a common drain. He confined his claim to one of the plots, on the allegation that this right of vicinage extended only to plot No. 3969 and not to 3967. He alleged that the ostensible sale consideration of Rs. 4000 was not the real consideration. The real consideration, according to him, was Rs. 1800 only. The defence, in the main, was that there was no custom of pre-emption in the area in which the plots in dispute lie. It was also pleaded that assuming, without admitting, that there was a custom of pre-emption, the claim was bad for partial pre-emption, in as much as the plaintiff's legal position was the same, vis-a-vis both the plots sold. Lastly it was urged that the consideration entered in the sale-deed represented the true consideration. It must be stated at the outset that the custom alleged is not an ordinary custom. In the first place, it is not a custom based upon an entry in the wajib-ul-arz; secondly, even as a custom, based upon the Muhammadan law, it involves a slight departure from it, in that the plaintiff's case is that he is entitled to come to Court on the basis of a custom founded upon the Muhammadan law without having to comply with the formal demands essential under that law.
2. One of the defendants in the suit was a man named L. Shankar Lal, who had brought a rival suit for pre-emption which was dismissed on the basis of a compromise. He may, therefore, be dismissed from consideration. In order to appreciate the position of the parties and the legal incidents of this somewhat unusual case, it is necessary to set forth its facts in some detail. Shamli is divided into two parts. There is a drain which runs across the whole of the town, dividing it into eastern and western parts. It was brought under the Town Areas Act on 21st January 1882, and its limits were defined on 28th January 1882. Old Shamli, i.e., the populated part of it, lies to the west. The eastern part is one of recent growth. The plaintiff's case was that the custom of pre-emption prevailed in the whole of Shamli; the defendants, on the other hand, while conceding that it prevailed in the western part, contended that it had no existence in the eastern part of it. The learned Munsif found that the custom of pre-emption in the eastern part had not been established. He found further that the real consideration was Rs. 4000 and that the value of the plot in suit was Rs. 1750. He also found that the defendants, in the event of the plaintiff's success, would be entitled to a further sum of Rs. 2600 for making improvements on the land. The suit, in his view, was not vitiated by the principle of partial pre-emption. In the result, he dismissed the suit on appeal the learned Civil Judge of Muzatfarnagar, while agreeing with the learned Munsif that there was no custom of pre-emption in the eastern half of Shamli, disagreed with him on the question of partial pre-emption. He found that the claim was bad by reason of that principle. He has, therefore, affirmed the decree of the Court of first instance. The plaintiff has come in second appeal. There is no dispute with regard to consideration. The argument before me has centred round two questions whether the custom of preemption existed in the eastern section of Shamli and whether the principle of partial pre-emption came in the plaintiff's way.
3. The geographical position of the two plots sold, as also of the whole of Shamli, and the history of its eastern section, are factors to be considered in arriving at a decision of the case. There is, as stated above, a drain dividing the whole town into two parts. There is also a road running through it. How this road has affected the two plots sold and the third one, which is the foundation of the plaintiff's claim, it is not necessary to discuss. Suffice it to say at this stage that the road has intersected the two plots. The history of the town may, as described by the learned Munsif, be stated in just a few words. The eastern section claimed an ancient population. The eastern section had only a Government building and a temple, far away from the town and all the land was under cultivation. A railway station was established about 1905 or 1906. The advent of the railway brought, in its train, prosperity, with the result that the town began to grow in importance as a business centre. It became an important grain market. Shops and buildings grew up, but all, on the findings, within seven or eight years before 1941, the year of the suit. To sum up the finding of the learned Munsif, which has not been disturbed by the lower appellate Court:
The result is that it is proved beyond doubt that the entire Abadi to the east of the Khala is a new growth which has come into existence on account of business prosperity resulting from the opening of the railway and other means of quick transportation and also in the coming into existence of electric power fifteen or seventeen years ago.
4. Sir Tej Bahadur Sapru, the learned Counsel for the defendants, contends that the finding on the question of custom is a finding of fact and cannot be assailed in second appeal. Reliance has been placed by him on Ram Saran Das v. Pearey Lal ('31) 18 A.I.R. 1931 All. 104. He has also relied upon Rup Chand v. Jambu Prasad ('10) 32 All. 247 at p. 252, Raja of Rammad v. Mangalam ('30) 17 A.I.R. 1930 P.C. 234 and Mangal Singh v. Siddhan Kunwar ('35) 22 A.I.R. 1935 P.C. 71. The last three cases are not cases of pre-emption, but the case in Ram Saran Das v. Pearey Lal ('31) 18 A.I.R. 1931 All. 104 is a case in point. If the finding of the lower appellate Court does not proceed upon a misapprehension or is not liable to con, demnation on any other ground, it is a finding of fact. Mr. Pearey Lal Banerji, however, argues that the Courts below did go astray when they split up Shamli into two sections. Shamli is, according to him, one unit and there was no warrant for splitting it up into two parts and holding that while one part had custom, the other had not. What, therefore, falls to consider is whether the Courts below were right in splitting the town into two sections. I do not think it is a case in which the plaintiff should, in second appeal, be shut out by reason merely of findings of fact.
5. But there are certain extraordinary features of this case, which I have already indicated and which might be reiterated. In the first place, the custom claimed is a custom not based on an entry in the wajib-ul-arz, not based upon strict Muhammadan law, in that the plaintiff claims the benefit of the Muhammadan law without complying with its formalities. It is true that the enforcement of the Town Areas Act did not destroy the plaintiff's right to claim preemption, as it affected his rights only to the extent it was necessary "for the purposes of the Act": vide Hafiz Mohammad Ahmad Saeed Khan v. Shiam Lal ('44) 31 A.I.R. 1944 All. 177. It is again true that Section 3, Agra Preemption Act (Act 12 [XII] of 1922), as interpreted in Phool Chand v. Ram Nath ('28) 15 A.I.R. 1928 All. 186 at p. 145, does not "take away the right of pre-emption vested in persons who had the right independently of the Act," but there can be no manner of doubt that the custom set up is a departure from the ordinary custom even as known to the Muhammadan law. It is also true that, although the plaintiff is a Hindu - and so are the vendees - and he can claim the right of pre-emption, nevertheless he cannot, as laid down so far back as the year 1869 in Sheikh Kudratulla Mahani Mohan ('69) 4 Beng. L.R. 134 (F.B.) at p. 141 and in Govind Dayal v. Inayat Ullah ('85) 7 All. 755 (F.B.) at pp. 777, 778, 789 and 790, claim it on the basis of justice, equity and good conscience, but only on the basis of custom. That custom he must, therefore, prove to the satisfaction of the Court, more particularly when the right of pre-emption is, as said so often and emphasised very recently in Durga Singh v. Girwar Dutt ('38) 25 A.I.R. 1938 All. 191, "a very weak right" because "it interferes with the freedom of contract and is opposed to a progressive state of society."
6. Bearing the above principle in mind, can it be said that the plaintiff has, in this case, established his right? On the geographical position of the plot in dispute, the history of the town and its present condition, must largely depend on the answer to this question. On the findings we must take it that Shamli is divided into two parts. We must also take it that the western part is old Shamli, the eastern part is one of recent growth-it may be that both are parts of the same town for administrative or fiscal purposes. The division of Shamli into two parts will not be an unnatural division from a legal point of view. Such a division does not offend either against the law of the land or against our conception of a unit based upon English authorities:
A custom must also be certain in respect of the locality where it is alleged to exist; for every custom must be local; and cannot be alleged as existing throughout the whole realm. Some definite limit must therefore be assigned to the area wherein the custom is said to obtain. (Halsbury'a Laws of England, Vol. 10, p. 229, para. 433, 1909 edition).
Locality has been defined in the Oxford Dictionary as a district as the site occupied by certain persons or things, or as the scene of certain activities; limitation to a county, district or place.
7. Even a Muhalla, in a big city like Bareilly, was considered a separate unit by their Lordships in Ram Saran Das v. Pearey Lal ('31) 18 A.I.R. 1931 All. 104. Say their Lordships at page 312:
It appears that the custom has been found to prevail in some Muhallas but not in all. This being so, a Muhalla is to be taken as a unit.
8. If a Muhalla, out of a large number, in a single city can be treated as a separate unit, it will not be doing any violence to the law to hold that the two sections of Shamli represented two different units altogether. That the conception of a unit need not necessarily coincide with the conception of a district or town is manifest from the following quotation from Halsbury's Laws of England on the same page:
This area must be denned by reference to the limits of some recognised division of land, as for instance a town, a hundred, a parish, a manor, a township, a borough, a vill, a hamlet, and a city, a liberty, serveral manors, a county, or an honour.
9. It is thus obvious that the unit for purposes of custom, may be not only a district j or a city or town but also a parish, a manor, a borough, a hamlet, i.e., an area smaller than a district or town. If the conception of a unit with relation to an area smaller than a district or town, is legally permissible, there is nothing wrong if we assume that the two sections of Shamli stood on a different footing. Mr. Banerji argues that there is evidence in this case consisting of previous judgments and decrees, which speak of a custom in the town of Shamli as a whole and he has relied upon a number of documents. The case in Gurdayal Mal v. Jhandu Mal ('88) 10 All. 585, he cites as an authority for this proposition. In that case their Lordships treated judgments and decrees as good evidence of custom and rejected the argument that there was nothing to indicate that they applied to the muhalla in dispute by holding that "the custom applied to the whole town, and the greater included the less." He has also relied upon Fiaz Ahmad Shah v. Church Missionary Trust, Association Landon ('24) 11 A.I.R. 1924 Lah. 700 and Miran Baksh v. Muhammad Akram Khan ('37) 24 A.I.R. 1937 Lah. 167. To my mind, none of these cases has any application. We do not know what the position of the muhalla in the case in Gurdayal Mal v. Jhandu Mal ('88) 10 All. 585 was. It is not possible to say, from the judgment, whether the muhalla in question was, in its geographical position, history and physical features, as distinct and separate from the rest of the muhallas as the one part of Shamli is from the other. In Fiaz Ahmad Shah v. Church Missionary Trust, Association Landon ('24) 11 A.I.R. 1924 Lah. 700 it was admitted that the custom of pre-emption was in force in Hussain Agahi and the area in dispute was found to be situated in Hussain Agahi. The precise form in which the question awaits consideration in this case did not, therefore, arise in that case. The vendees never admitted in this case that there was a custom of pre-emption in the entire town of Shamli; indeed they put the plaintiff to a strict proof of the custom in the eastern part of it. Besides, the facts, as reported, did not disclose any sharp division in the different parts of Hussain Agahi such as we find in the two sections of Shamli. The case in Miran Baksh v. Muhammad Akram Khan ('37) 24 A.I.R. 1937 Lah. 167 appears, on first sight, to be in favour of the plaintiff, but, read carefully, it is not so. The present, in the first place, is not a case of expansion; it is a clear case of two distinct units differing in essential characteristics. There it was admitted that the custom of pre-emption prevailed in Urtak Hazro and Urtak proper and the urban area Urtak, in which the land, in dispute, was situate, was a part of the same sub-division and was, in fact, an expansion of the same. On these findings the urban area Urtak was bound to be governed by the same legal incidents and the same customs. The defendants have, on the other hand relied on Salamat Rai v. Kanshi Ram ('18) 5 A.I.R. 1918 Lah. 334, Gopal Singh v. Mool Raj ('24) 11 A.I.R. 1924 Lah. 557 and Kishan Chand v. Nanda Mal ('38) 25 A.I.R. 1938 Lah. 64. The first case is authority for the proposition that the inclusion of certain land within the municipal limits of a town does not necessarily mean that the new area has become a part of the town for purposes of pre-emption. In the second case it was held that there is no custom of pre-emption in a business quarter of recent growth and evidence of its existence in certain parts of the old town is not sufficient to show that the custom exists also in the particular quarter.
The last case affirms the principle laid down in Gopal Singh v. Mool Raj ('24) 11 A.I.R. 1924 Lah. 557. Reliance has also been placed upon the case in Ram Saran Das v. Pearey Lal ('31) 18 A.I.R. 1931 All. 104, referred to already. These cases undoubtedly support the defendant's contention and amount, in substance, to a re-affirmation of the principle laid down so far back as the year 1888 in Gokul Prasad v. Radho ('88) 10 All. 358, although the particular custom was of a different character. Sir Tej's contention, on the strength of this case, is that even in the case of a right of privacy so universally recognised in these parts of the country, the plaintiff has to prove affirmatively that "the privacy in fact and substantially exists, and has been and in fact enjoyed." His contention is correct and carries conviction to my mind. If the onus of proving his case in the affirmative, even where the custom is a custom of privacy, so well-known and universally recognised, rests on the shoulders of the plaintiff, the burden is heavier if it is based upon a custom which, on the authorities, is a weak custom, more particularly when, as in this case, it is not based upon the wajib-ul-arz but upon the Muhammadan law-with certain important elements lacking, to wit, the two demands. Ram Saran Das v. Pearey Lal ('31) 18 A.I.R. 1931 All. 104 is the latest authority of this Court and furnishes a complete answer to the plaintiff's case. Say their Lordships:
We must, therefore, accept the findings of both the Courts below that there is no universal custom established for the whole town of Bareilly. It appears that the custom has been found to prevail in some muhallas but not in all. This being so, a muhalla, is to be taken as a unit.
10. Mr. Banerji, however, contends that the evidence furnished by the plaints and decrees in suits brought on the basis of such a custom in the year 1940 is sufficient to warrant a finding that the custom prevails in the eastern part of Shamli. To my mind, these documents do not support the plaintiff. They indicate that suits for pre-emption were brought, but they always ended in a compromise decree under which they were, at the request of the plaintiffs, dismissed. If it was such a well-recognised custom governing both the sections of Shamli, why did not the plaintiff in each case press his suit to its logical conclusion and secure a judgment from the Court? It is possible, even probable, that the suits were brought in a hurry, but, as they had no merits, the plaintiff got them dismissed. It will, at all events, be unsafe to draw a deduction in favour of the plaintiff from an evidence of this character. We now come to the other important question in the case. The learned Judge finds that the two plots sold, viz., 3967 and 3969 form a compact piece of land. The conversion of a portion of the plot into a passage did not vest it in the public and did not affect the proprietary right, as was held in Aziz Ahmad v. Nazir Ahmad ('27) 14 A.I.R. 1927 All. 504. The plaintiff was, therefore, on the strength of the case in Abdul Shakuar v. Abdul Ghafur ('10) 6 I.C. 358, entitled to pre-empt the whole area. The two plots must, on the finding, be treated as one for the purposes of pre-emption. The vendor sold the two plots as one integer and it is not open to the plaintiff to disintegrate that integer, which will certainly be the result of decreeing pre-emption with respect to one and not with respect to the other. The learned Counsel for the appellant contends that this is not good law. He has not placed before me any authority to the contrary and it does not lie with me to question the correctness of a decision by a Division Bench of this Court. In the result, I dismiss the appeal, but, under the circumstances of the case, I direct the parties to bear their own costs throughout. Mr. Pearey Lal Banerji prayed for leave for Letters Patent. On the first question I would have felt it my duty to grant leave, but, as the finding on the second question is equally fatal to the suit and the appeal, I do not think I would be justified in acceding to his prayer. I had no doubt in my mind about the correctness of the view of the Court below on the second question; indeed, I did not hear the respondents on this point. I therefore, refuse the leave prayed for.