JUDGMENT Iqbal Ahmad, J.
1. I confess I have felt some difficulty in deciding this appeal. The difficulty has been partly due to my being unacquainted with the system of land tenures in Kumaun Division and partly to the fact that this is the first pre-emption case that comes before me from that Division. The Agra Pre-emtion Act does not apply to the Kumaun Division and the incidents of the custom of pre-emption prevailing in that Division have to be gathered mainly, if not wholly, from a book by Mr. Stowell styled as "A Manual of the Land Tenures of the Kumaun Division." Even in this book, the alleged custom of preemption prevailing in Kumaun Division is not set forth in sufficient detail and the observations of the learned author on the point do not furnish an infallible guide in the decision of the appeal before me. Lastly the difficulty in deciding the appeal has been occasioned by the fact that it is impossible to ascertain with reasonable certainty the findings that the learned Judge of the lower Appellate Court intended to or did record on the points involved in the case. The suit giving rise to the present appeal was to pre-empt an alleged transaction of sale evidenced by a deed dated 10th June 1932, executed by Mr. C.T. Allen in favour of Mr. Sherred, respondent. The property sold was an orchard measuring 96 acres. This orchard is described in the revenue papers as Khabrar-thok estate and is assessed to a Government revenue of Rs. 73-9-7. The land was granted by the Local Government to Mr. Allen in the year 1914 and the orchard was planted by Mr. Allen on the same. The plaintiff is admittedly a resident co-sharer in village Satbunga and his case was that the Khabrarthok estate was a part of that village and as Mr. Sherred was not a co-sharer in the village he had a right to pre-empt the sale in his favour.
2. The suit was contested both by Mr. Allen and by Mr. Sherred on a variety of grounds. They denied that the Khabrar-thok estate was a part of village Satbhunga and alleged that Mr. Sherred was a co-sharer in village-Satbhunga and was also a co-sharer with Mr. Allen in the orchard in suit. They therefore maintained that the plaintiff had no right of pre-emption. They further contended that the transaction evidenced by the deed dated 10th June 1932, was really not one of sale. Lastly they denied the existence of a custom of pre-emption. Triatrial Court held that Mr. Sherred was not a co-sharer either in village Satbhunga or in. the Khabrar-thok, that the custom of preemption did prevail in the village and that the transfer in favour of Mr. Sherred washy means of sale. It however dismissed the plaintiff's suit on the finding that the-orchard in dispute did not form part of village Satbhunga, and that by the grant made by the Government Mr. Allen did not become a co-sharer in village Satbhunga. While dismissing the plaintiff's suit the trial Court observed that "the case is nothing but an attempt on plaintiff's part to secure a valuable property at a ridiculously low figure." On appeal by the plaintiff the lower Appellate Court affirmed the; decree of the trial Court.
3. It appears that in Sambat 1880 corresponding to 1882 A.D., Mr. Traill, the then Commissioner of Kumaun, fixed the boundaries of the villages in Kumaun. These boundaries are known as sal assi boundaries and are referred to at p. 168 of Mr. Stowell's book (1937 edition). It is stated, in the book that:
In 1880 (Sambat) Mr. Traill carried out a great so-called "measurement" of the whole province and included all lands of -whatever description within the nominal boundaries of the villages, so that however far the forest stretched on any side of a village, the limits of that village extended through the forest until it met the boundary of some other village. There was no actual measurement of the forests and only an estimate of the cultivated blocks.... They were merely convenient divisions of the district, a "nominal allotment of waste," and conveyed no proprietary right over waste and forest land to the villagers, though in most cases they corresponded with the village customary sphere of grazing and timber rights especially in the more closely cultivated tracts.
4. The net result of "sal assi boundaries" was that every village in Kumaun consisted of two portions, a measured portion which constituted the village proper and consisted of the abadi and the cultivated land, and an unmeasured portion consisting of a large area of land in which the residents of the village had grazing and timber rights and some other rights. The unmeasured land is the property of the Government and the proprietors of the village proper had no right in the same except rights by way of customary easement. The Government as the owner of the unmeasured land has the right to grant the same to whomsoever it likes and a grant if made is styled as Nayabad grant. Nayabad grant is mentioned by Mr. Sto-well as involving "the active intervention of the State, which confers proprietary right and settles the land on payment of revenue" (p. 165). Further a Nayabad grant constitutes a separate revenue mahal until the next revision of settlement, when it is usually included in the village in which it lies or made into a laga of such village. The villages cannot contest the right of Government to confer proprietary right in unmeasured land by a Nayabad grant (page 167). It is common ground that the grant to Mr. Allen was a Nayabad grant and he, therefore, became a proprietor of the 96 acres of land on which he planted the orchard. It is admitted that no settlement took place from the date of the grant and accordingly the Khabrar thok is still a separate mahal and has not been included in Satbhunga village. It is however contended on behalf of the appellant that as the grant to Mr. Allen was out of the uncultivated area of Satbhunga village the Khabrar thok must be deemed to be a part of that village.
5. The learned Judge of the lower Appellate Court has not recorded any categorical finding on the question as to whether or not Khabrar thok forms part of village Satbhunga, but it appears from his judgment that he intended to affirm the finding of the trial Court on the point and to hold that Khabrar-thok was a separate entity. He accordingly held that the plaintiff as a co. sharer of Satbhunga had not a right of pre-emption. After giving due weight to all that the learned Counsel for the appellant had to say, I have arrived at the conclusion that the decisions of the Courts below are correct and ought to be affirmed. In arriving at this conclusion I have been mainly influenced by the consideration that to decree the plaintiff's suit would be to perpetrate grave injustice as I am satisfied that the value of the Khabrar thok is far in excess of the sum of Rs. 565, the nominal consideration entered in the sale deed. It appears from the evidence of Mr. Sherred, and this evidence I accept, that the value of the thok is about Rs. 65,000, and I am satisfied that it was because of long standing business relations between Mr. Allen and Mr. Sherred that the orchard was transferred to Mr. Sherred for a nominal sum of Rs. 565. The subject of pre-emption has been dealt with by Mr. Stowell on pp. 49 to 53 of his book. He has observed that the Kumaun custom of pre-emption is a constant source of litigation and has produced a great number or rulings, not always consistent, regarding its own peculiar rules.
6. He goes on to observe that in questions distinct from the local peculiarities which determine who may claim to pre-empt and in what circumstances, the ordinary rules of law apply and the rulings of the various High Courts should be observed.
7. In the case before me the rulings of this Court can throw no light for the simple reason that the answer to the question whether the plaintiff has a right of preemption depends on the determination of the effect of a Nayabad grant which is a "local peculiarity" so far as Kumaun is concerned. At p. 50 Mr. Stowell has observed that:
In dealing with claims for pre-emption it is always necessary to keep in mind two points. One is that the custom constitutes an interference with the normal principle of freedom of contract and may easily be used for vexatious or dishonest purposes. Claims for pre-emption should thus be dealt with with care to avoid doing injustice to people who have done no wrong.
8. As I have observed above, it would be doing gross injustice to Mr. Sherred to decree the plaintiff's claim for pre-emption and I am prepared to affirm the decrees of the Courts below on this ground alone. But apart from this, I consider that the plaintiff had not the right to pre-empt the sale in question. The Khabrar thok, as already observed, constitutes a separate mahal and the responsibility for the payment of the revenue of that thok is not shared by cosharers of village Satbhunga. Further no rights are shared in common by the co-sharers of Satbhunga with the owner of Khabrar-thok and that thok therefore forms a separate entity. It may be that the thok is within the sal assi boundaries of village Satbhunga, but the thok has been carved out not of that portion of the village in which the co-sharers had proprietary rights but out of that portion of the village which was the pro-potty of the Government and in which the co-sharers of the village, apart from customary rights of easement, had no proprietary rights. It may be that according to the practice prevailing in Kumaun the Khabrar thok may in the next settlement be included in the same mahal as village Batbhunga. But in deciding the present litigation, attention has to be concentrated on the constitution of the village as it exists today irrespective of what may happen in the next settlement. For the time being the Khabrar thok is in a mahal distinct from the mahal constituting the ISatbhunga village and the co-sharer in the one mahal has no connexion or concern with the co-sharer in the other mahal. The plaintiff is therefore a total stranger to Khabrar thok and accordingly has not the right to pre-empt the alleged sale in favour of Mr. Sherred.
9. There is yet another ground on which the plaintiff's suit must fail. The document of transfer in favour of Mr. Sherred is no doubt styled as a sale deed. But in fact and in substance it is not a sale pure and wimple. It appears from the evidence of Mr. Allen that from the very outset he looked upon Mr. Sherred as a co-sharer in Khabrar-thok. The orchard is the outcome of the joint labour and expenditure of capital by Mr. Allen and by Mr. Sherred. They were to all intents and purposes co-sharers, though the grant by the Government was only in favour of Mr. Allen. In one view of the matter Mr. Allen may be looked upon both as a grantee in his own right and as a benamidar grantee on behalf of Mr. Sherred. In this view of the matter the plaintiff has no right of preemption. Apart from this, it is clear that but for the business relationship between the two Mr. Allen would never have parted with the orchard for a paltry sum of Its. 565. The real consideration for the transfer in favour of Mr. Sherred was the business relationship between the two and this consideration cannot be repaid by the plaintiff. The plaintiff therefore cannot be substituted for Mr. Sherred. For the reasons given above, I affirm the decision of the Courts below and dismiss this appeal with costs. Leave to appeal under the Letters Patent is granted.