JUDGMENT
1. This is a plaintiffs' appeal arising out of a suit for pre-emption. There were three plaintiffs, Dwarka Singh, Plaintiff No. 1, being the lambardar and the other two plaintiffs co-sharers in the same thok in which the property sold is situated. The suit related to two taluqas, each of which is a separate mahal called Dodhwa Asli and Surauja Asli. The plaintiff did not admit that the consideration mentioned in the sale-deed was the true consideration. The defendants maintained that the consideration mentioned in the deed was the true consideration and denied the existence of a custom of pre-emption and also pleaded an acquiescence on the part of the plaintiffs. The copy of the wajib-ul-arz produced by the plaintiffs was at places illegible and the Court ordered the original to be sent for. When the original arrived and the language of the wajib-ul-arz was clearly understood, the defendants took a further legal plea that even if the alleged custom never existed they could sue for pre-emption. The plaintiffs had at least one month's notice to meet this objection and the Court expressed its readiness to allow them to produce further evidence if they chose to do so. No such evidence, however, was produced. The Court below found the consideration mentioned in the sale-deed to be slightly exaggerated and that there was no acquiescence on the part of the plaintiffs. Both these findings are not challenged in appeal. The Court further found that no custom existed in these taluqas because about the year 1806 there were single proprietors of both the taluqas. It further, held that even if a custom existed, the right to pre-empt was confined to lambardars who were co-sharers, and not to mere co-sharers. The suit was accordingly dismissed.
2. We find it difficult to accept the view of the Court below that there is no prima facie evidence to prove the existence of a custom. The district is a permanently settled district and with the exception of a revisional settlement there has been no settlement since 1842, when the last wajib-ul-arz was prepared. A copy of the wajib-ul-arz and the robkar of the year show,that there was a right of pre-emption fully recognized as prevailing in these taluqas. That evidence is a prima facie proof of the existence of a custom of pre-emption. The mere fact that about 1806 these taluqas were settled with single persons can by no means be sufficient to destroy the presumption. It is not even shown that these persons were accepting the settlement only as single individuals and not as managing members of a joint Hindu family. In any case the interval of time between this period and the entry of the right of pre-emption was sufficiently long to leave the presumption unrebutted. We, therefore, accept the plaintiffs' contention that a custom of pre-emption exists in these mahals.
3. It was, however, admitted in the plaint that the incidents of this custom are recorded in the wajib-ul-arz of 1842. Clause 8 of that wajib-ul-arz states:
If any of us wants to transfer his field or his share by mortgage, sale, lease, etc., it will be binding on him first to inform his lambardars co-sharers (lambardaran sharikdaran) and to sell or mortgage it to them at the price fixed. If, without giving any information to the lambardars, or, in case they offer the fixed price, he will transfer it to others, the transfer will by no means be valid.
4. The other paragraphs of this wajib-ul-arz show quite clearly that the word "lambardars" is not used in this document loosely for co-sharers and pattidars, but has the distinct and ordinary meaning of lambardars. In fact para. 10 provides who the lambardars are and how they are to be appointed in future. Paragraph 11 also makes a clear distinction between zemindars and lambardars. One can also conceive of cases when about 1842, a person might have been a lambardar and yet might not for, the time being be a sharikdar. There is, therefore, no justification for holding that the word "lambardar" in this clause is a surplusage. In fact the subsequent portion of that clause uses the word "lambardaran" without mentioning the word "sharikdaran" which shows that "lambardaran" is the real important word, and the word "sharikdaran" was added in order to limit the right to those "lambardars" who were also co-sharers. This interpretation finds support from the view taken by this Court in First Appeal No. 31 of 1895 decided on the 1st of July 1895, where too the expression "lambardaran sharikdaran" occurring in a wajib-ul-arz in this very district was held not to mean mere co-sharers. After all the plaintiffs have to prove a custom of pre-emption under which they are entitled to claim preference. The only evidence in support of their claim consists of this document which contains an expression capable of a meaning entirely favourable to the defendants. The plaintiffs, therefore, must be taken to have failed to prove by unambiguous evidence their right to claim pre-emption. We must, therefore, hold that Plaintiffs Nos. 2 and 3 not being lambardars in these mahals have no right to pre-emption under the custom recorded in the wajib-ul-arz of 1842. The learned advocate for the appellants contends that even in that view a decree ought to be passed in favour of Dwarka Singh, the lambardar, and the suit ought not be dismissed in to. The learned Subordinate Judge has held that Dwarka Singh having associated with himself the other two plaintiffs, who had no right to pre-empt the property, has disqualified himself from maintaining the suit. It is contended that the effect of joining Adit Singh and Ram Singh is not to introduce any strangers to the mahal inasmuch as these Tatter persons are already co-sharers. But it has been held in several cases that if a plaintiff who has a right of pre-emption associates with himself persons who have no such right, he becomes disentitled from claiming pre-emption. We may refer to the case of Bhawani Prasad v. Damru [1882] 5 All. 197 which was followed in the case of Bhupal Singh v. Mohan Singh [1897] 19 All. 324. In this latter case it was held that "stranger" did not merely mean a person who was a total stranger to the party to the suit, but that it included every person who had not a right of pre-emption against the vendee. That the Plaintiff No. 1 has become disqualified by associating with himself persons who had no right of pre-emption is well settled by a number of cases in this Court: vide, the cases of Gupteshwar Ram v. Rate Krishna Ram [1912] 34 All. 542 and Rahima v. Razzak Ali A.I.R. 1923 All. 256. Cases where the principal plaintiff has associated with himself persons who had a right of pre-emption, but who disqualified themselves from claiming pre-emption by reason, for instance, of a failure to make demands, stands on a different footing. Having regard to the series of cases in this Court it is not necessary to consider the basis underlying this decision. We might note that the Legislature has by the enforcement of the new Pre-emption Act accepted the view of this Court that a pre-emptor can disqualify himself by merely associating with himself in the suit persons who have no right of pre-emption.
5. We accordingly hold that the claim of all the plaintiffs must stand dismissed.
6. The appeal is accordingly dismissed with costs including in this Court fees on the higher scale.