JUDGMENT Henry Richard, C.J. and Tudball, J.
1. This appeal arises out of a suit for pre-emption. The plaintiff is a co-sharer. The vendee is a stranger. The plaintiff adduced in evidence in support of the existence of the alleged custom, an extract from the wajib-ul-arz of 1867. No earlier wajib-ul-arz was produced. He also adduced in evidence two decrees, one based on compromise and the other a decree in which the question of a custom was not decided. There was some oral evidence but on cross-examination these witnesses had to admit that there had been sales to strangers and no pre-emption claimed. Lastly he produced an extract from the wajib-ul-arz for the current settlement which refers to the wajib-ul-arz of 1867 for the customs which were not specified in the document itself.
2. The entry in the wajib-ul-arz of 1867 no doubt refers to a right of pre-emption. In the very same clause, however, there are references to a number of other matters which it is extremely improbable, were existing custom. In fact the wajib-ul-arz appears to be almost, if not quite identical with the wajib-ul-arz referred to in the case of Dhian Kunwar v. Diwan Singh (1911) 8 A.L.J. 786. It seems to us that the court considering the proper issue in the case, namely, 'does or does not the custom exist' was justified in saying that he was not satisfied that the custom existed on the evidence produced, bearing in mind that the onus lay on the plaintiff. This would be a finding of fact binding on this Court in second appeal. No doubt it has been decided by a Full Bench - of this Court that entries in the wajib-ul-arz are prime facie to be regarded as reference to customs rather than to contracts. But this does not preclude the court from taking into consideration, when considering the evidence as a whole, the language which is used in the wajib-ul-arz. The learned District Judge commences his Judgment with the following words "as regards the entry in the wajib-ul-arz relating to preemption it seems to be settled as the result of a series of rulings of the Hon'ble High Court that in the Saharanpur district the wajib-ul-arz is evidence of contract which lasts only during the settlement to which it relates and is not proof of custom." We do not think that these remarks are correct. This Court has never decided that a custom of pre-emption cannot exist in the Saharanpur district or that the wajib-ul-arzes in Saharanpur are not evidence of a custom. Each case should be decided on its own facts and circumstances. In the case of Dhian Kunwar v. Diwan Singh (1911) 8 A.L.J. 786 to which we have already referred, the lower appellate court held on the evidence that the custom of pre-emption was not proved. This Court in second appeal referred to the evidence that had been produced on behalf of the plaintiff. It consisted of an entry from the wajib-ul-arz of 1867 and nothing more. The earlier wajib-ul-arzes were not produced. This Court held that the court below was entitled to consider the language of the wajib-ul-arz, the fact that the earlier wajib-ul-arz had not been produced and that if it came to the conclusion that the plaintiff by merely producing the extract from the wajib-ul-arz of 1867 had failed to prove the existence of the custom the court was justified in its conclusion. To all intents and purposes the present case stands on exactly the same basis. We therefore accept the finding of the court below as a finding of fact binding on this Court in second appeal. We dismiss the appeal with costs.