JUDGMENT Sulaiman, C.J.
1. These two appeals arise out of two different suits which were decided by two different Munsifs, but were disposed of together by the lower appellate Court, which has caused soma confusion. Suit No. 561 of 1932 was a pre-emption suit filed on 25th October 1932. The plaintiff alleged in the plaint that the transfer was without his knowledge and against the custom of the village and against the conditions laid down in the wajib-ul-arz. There was no mention of the Pre-emption Act in the plaint. Issues were framed on 13th February 1933,and one of the issues was issue 3 "Does a custom of pre-emption prevail in the village? Is the suit barred by Sub-section (3) of Section 1, Agra Preemption Act?" The learned Munsif came to the conclusion that because the property was within the Municipal limits of Ferozabad, there was no question of pre-emption at all. This view was obviously wrong.
2. Suit No. 35 of 1933 was instituted by the same plaintiff on 23rd January 1933, against the same vendee, but in respect or another sale deed. It was heard by another learned Munsif. Apparently the same vakil had appeared for the plaintiff and had drafted the plaint. In this plaint the case was that the sale had been without the knowledge of the plaintiff, against the custom of the village, against the conditions laid down by the wajib-ul-arz and against the Mahomedan law. Although in this suit the plaintiff put in the Mahomedan law as an addition, there was again no reference to the Pre-emption Act. On 2nd March 1933, the plaintiff's vakil appeared before the Court and made a statement that the suit for pre-emption was based on the Pre-emption Act and that the Mahomedan "law had no application to it. (paper No. 18-A). Accordingly when the Court framed the issues, it did no frame any issue regarding any alleged custom. The learned vakil did not press that any such issue should be framed. Apparently he abandoned this position. The result was that in this suit the defendant was not called upon to produce any evidence to rebut any case of custom. At the time of the argument the plaintiff wanted to change his ground and urged that in view of the entry in the wajib-ul-arz there was a local custom. The learned Munsif held that the plaintiff could not be permitted to set up a local custom at the stage of argument, especially when his counsel had made a clear statement at the time of the framing of the issues that the case was instituted under the Agra Pre-emption Act, and that if such a case were set up at the time of argument, the defendant might be said to have had no opportunity of meeting the case by evidence which he might have produced. He accordingly did not allow this point to be raised. He dismissed the claim on the ground that the plaintiff had no right of pre-emption under the Agra Pre-emption Act.
3. The appellate Court has confused the two cases. In the first place, it thought that in the plaints (plaint is a mistake) of both the suits it was not made clear whether the right of pre-emption (preempt is wrong) was sought to be enforced under the Mahomedan law (Municipal law in the judgment is a mistake) or under the Agra Pre-emption Act or under any separate custom. The lower appellate Court apparently did not read para. 2 of the plaint where the plaintiff had alleged that the transfer had been contrary to the custom of the village. There was no reference to the Municipal law at all in the plaint, but the reference was to the Mahomedan law. There was, as already pointed out, no reference to the Agra Pre-emption Act. The lower appellate Court then has gone on to remark that later on, the point was made clear from the statement of the plaintiff's counsel recorded on paper No. 18-A (8-A is a mistake), wherein he stated that the suits were for pre-emption under the Agra Pre-emption Act. The learned Counsel for the respondents is unable to draw my attention to any such statement having been made in Suit No. 561 of 1932. There was certainly a statement made in Suit No. 35 of 1933. But my attention has not been drawn to any agreement or order under which the statement made in one suit was to be read in the other suit. The learned Judge held that the statement made by the counsel was by no means an erroneous admission on the point of law. It is not clear what is meant by this. He has then remarked that if it was, then there is nothing to debar the plaintiff from proving a right of pre-emption; and he has referred to the judgment of Mr. Roy where the plaintiff had relied on the wajib-ul-arz. The learned Judge has then come to the conclusion that the wazib-ul-arz was of no avail to him as it does not record a customary right of pre-emption within a Municipal area to which the Act is not applicable. He has then held that in the absence of any proof of a customary right of preemption within the Municipal area of Firozabad to which the Act is not applicable, the right of pre-emption does not exist. The learned Judge has therefore not based his judgment on the admission made by the plaintiff's counsel which, according to him, was not erroneous, but on the view that the wajib-ul-arz did not apply to the Municipal area at all. All these points were erroneous.
4. If the area within which the property sold is situated lies within the Municipal limits, then the Agra Pre-emption Act does not apply in the sense that no right can be claimed under it independently of any custom or contract or the Mahomedan law. But it does not follow that no right of pre-emption can at all be exercised. A custom of pre-emption can be established by evidence. The question for consideration was whether the evidence given by the plaintiff, namely, the entry in the wajib-ul-arz, established the custom or a subsisting contract. The view of the lower Court that the wajib-ul-arz is of no avail because it does not record a right of preemption within the Municipal area is obviously incorrect. The confusion has been caused by disposing of two appeals which arose out of two suits which had been disposed of separately by two different Munsifs on one common point. In my opinion the appeals should be re heard by the lower appellate Court. I accordingly allow both these appeals and setting aside the decrees of the Court below, send these cases back to the lower appellate Court for disposal according to law. The Court should also consider the responsibility of the plaintiff as regards costs.