JUDGMENT Rafiq and Lindsay, JJ.
1. The question raised in this second appeal is whether the custom of preemption upon which the plaintiff relied was proved.
2. The only document put forward in proof of this custom was a wajib-ul-arz which was prepared in the year 1909, after a partition had taken place in the village. It seems to be the case that when partition is made it is the duty of the Collector or Assistant Collector to prepare a fresh record of rights. This, as is pointed out by the learned Counsel for the respondent, was laid down in the case reported in I.L.R., 22 All., 1.
3. We take it, therefore, that this wajib-ul-arz prepared in the year 1909 can be looked at for the purpose of ascertaining whether it records a custom.
4. The argument on behalf of the defendant appellant is that on the language of this document the courts ought not to hold that there is a record of custom but merely a record of contract, and in this connection reference is made to what was laid down in the case of Surajbali v. Mohammad Nasir (1918) 16 A.L.R. 879.
6. There can, we think, be no doubt that if the principles laid down in this case are to be followed, then we ought certainly to hold that this document now before us is not a record of custom. In that case it was pointed out that where the record which is relied upon for the purpose of showing custom contains a number of extraneous matters, some of which could only have relation to a contract entered into between the parties and which could not possibly be based upon custom, then it ought to be taken that the whole wajib-ul-arz is not properly a record of custom at all. We have followed this case in many other cases recently decided.
7. Turning to the document now before us, we find that Chapter II of this wajib-ul-arz is headed as follows:-- "Hissadaran ke apas he huquq ya jo rasm muahida khas par mabni hon." The 16th paragraph of this Chapter relates to pre-emption. It also deals with other matters, including the procedure to be observed when mortgages are to be redeemed, and it distinctly gives a right to a co-sharer to redeem a mortgage made by another co-sharer who is unwilling or unable to ask for redemption at, the time when redemption becomes due. It is set out there that another co-sharer may redeem and hold the property under charge until it is redeemed by the co-sharer who made the mortgage.
8. We cannot in principle distinguish this case from the case to which we have referred, viz. Surajbali v. Mohammad Nasir (1918) 16 A.L.R. 879 and we consequently hold that the record relied on in this case is not a record of custom.
9. It has been argued before us that this point cannot be debated in second appeal inasmuch as the question was not raised before the learned Judge of the lower appellate court. In the grounds of appeal which were taken in that court the first ground was that the custom of pre-emption, on the basis whereof the plaintiff sues, is not proved from any reasonable evidence. The judgment of the learned Judge seems to indicate, however, that this point was not debated before him and his judgment allows that the only point which was, argued before him was with regard to the interpretation of the preferential right of the co-sharers inter se. Be that as it may, it seems to us that the defendant appellant is not precluded from asking us to hold, on the basis of the decisions of the Pre-emption Bench, that the language of this document does not show that what was recorded was a true record of custom. We therefore allow the appeal, set aside the decree of the court below and direct that the claim of the plaintiff be dismissed. The defendant appellant will be entitled to his costs in all three courts.