JUDGMENT
1. This is a defendant's appeal arising out of a suit for pre-emption. Both the Courts below have decreed the suit. The plaintiff produced a copy of the wajib-ul-arz of the year 1880, which recited that there was a custom of pre-emption and also gave details of the custom. The defendants, however, produced a copy of the dastur dehi of the year 1813 and also produced the patwari to show that there is no entry of any such custom in the wajib-ul-arz of the resent Settlement of 1313 Fasli. There is no other evidence in proof of the custom of pre-emption. There are, however, a few instances of sales to strangers, bat it is not clearly shown whether those sales look place with the consent of the co-sharers or not. The learned District Judge thought that in the dastur dehi of 1843 there was no reference to the right of pre-emption at all, and relying on the case of Harnand v. Kalloo 3 Ind. Cas. 2 : 6 A.L.J. 779 : 31 A. 533, he was of opinion that the presumption that the entry in wajib-ul-arz of 1880 was a record of custom had not been rebutted and that the custom was proved. In our opinion the learned District Judge was clearly in error. It is not only that in the dastur dehi of 1843 there is no reference to the right of pre emption, but we find that paragraph 2 of that document states clearly that all the co-sharers have power to transfer property in their possession. This power is not subject to any restrictions. This clearly negatives the existence of right of pre-emption in the year 1843. There is absolutely no evidence to show that there was any occasion for the custom to grow up between the years 1843 and 1880, when the wajib-ul-arz relied on by the plaintiff was drawn up, The case referred to by the learned District Judge is, therefore, clearly distinguishable. In our opinion when these two entries conflict with each other, the plaintiff has failed to discharge the burden of proving that there is a custom under which he is entitled to pre-empt in the case of a lease. We may note that the period of the Settlement of 1880 has expired and no question of a subsisting contract arises in this case. We, therefore, allow the appeal, set aside the decrees of the Courts below and dismiss the plaintiff's suit with costs in all Courts.