JUDGMENT
1. It appears that one Moulvi Azz-ud-din was the propretor of a grove situate in the city of Budaun. The Moulvi died some time ago leaving her surviving three sons end a daughter by one wife and one son by another wife. The latter was called M. Mohammad Abul Hasan and was in judicial service in Hyderabad. The names of the children, by the first wife, were M. Mohammad Wahab-ud-din, wahij-ud-din and Musammat Afzal un-nissa. Some years ago Afzal-un-nissa sold her share to Abul Hasan. On the 2nd November 1920 Wahab-ud din sold his snare in the grove to Abul Hasan in lieu of Rs. 2,200. Zia-ud-din the own brother of the vendor brought the suit out of which this appeal has arisen against the vendor and the vendee to recover the share sold on the ground of pre-emption. It was alleged in the' plaint that after the death of M. Aziz-ud-din, the children by the first wife gave his share to Abul Hasan, the son by the second wife are separated from him. The plaintiff Zia-uddn was employed in Government service at' Aligarh when his brother Wahab-ud-din executed a sale-deed of his chare in the grove on the 2nd November 1920 in favour, of Abu Hasan. On the 10th November 1920 when Zia-nd-din went home he learnt of the sale. Immediately on coming to know of the sale he made the two demonds required by the Muhammadar. lay and as the vended declned to transfer the share to him the present suit had to be brought. The claim of the plaintiff was based on the allegation that a custom of preemption obtained in the city of Budaun under which he as the own brother of the vendor had a preferential right over the vendee. Another basis of the claim was that under the Muhammadan Lal apart from any custom the plaintiff being the shaft Khalit had a better right of purchase than the vendee. The claim was resisted by the denial of the custom set up in the plaint and the allegation of the plaintiff being shaft khalit. It was plead-ed for the defence that there had been partition of the grove among all the children of M. Aaiz-ud-din, each of them being in possession of his or her separate share, the plaintiff therefore had no better right to the property in suit than the vendee. The Court of first instance dismissed the claim holding that all the children of M. Aziz-din had divided the prove prior to the deputed sale that no custom of preemption obtained in Budaun that the plaintiff was not a shift khalit. On appeal the learned District Judge upheld the decree of the first Court.
2. In second appeal before us the plaintiff challenges the finding of the Court below with regard to the absence of the custom of pre-emption in Budaun and the status of the plaintiff as not being a shaft khalit. The finding of the court below with regard to the partition of the grove in question is admitted and indeed it could not be denied as the finding is one of fact. The learned Counsel for the plaintiff-appellant has read to us the paragraph of the c Waib-ul-arz upon the basis of which he contends that a custom of preemption prevails in Budaun. We have duly considered' the language of that paragraph and we agree with Ihe Court of first instance that it does not prove the. Custom set up or behalf of the plaintiff The real dispute in the case is as to the 320 status of the plaintiff as owner of. part of the not grove, i.e. whether he is a $hafi khalit. The case for him is that the vendee has of got either a house or a bagia as is marked an on the plan to the east of the grove in ns question. On account of his ownership of the said property he has a right of he way over those portions of the grove on which have fallen to the lot of the plaint ed if and his two brothers. The share of the vendor therefore bears a servitude i.e. the liability to be walked over by the vendee. The same servitude is at borne by the share of the grove of the plaintiff. In other words the LA statement is that the vendee's the owner of a dominant tenement while the pre-;d emptor and the vendor ate the owners of two servient tenements. There is there fore a bond of union between the vendor and the plaintiff as both of " them are the owners of servient tenements and thus the plaintiff is a shaftkhalit and has a superior right to purchase the share of the vendor to the vendee. The obvious reply to this argument is that qua the share of the vendor both the pre-emptor and the vendee are owners? of dominant tenements for it appears from the plan on the record marked Exhibit A. and the evidence on the record, that in 'order target to his portion of the grove, or away from it the plaintiff has to pass ; through the share of the grove that be longs to the vendor which was sold on the 2nd November 1920. The vendee E has also to pass over the same portion ' of the grove of the vendor. Thus both the pre-emptor and the vendee are as qua the share of the vendor, proprietors of dominant tenements. It is, however argued that the vendor's share of the grove is a servient tenement qua the vendee as proprietor of tie property to the east of the grove and the vendee is not an owner of any servient tenement. The plaintiff preemptor has a bond of un on with the vendor inasmuch as his share and vendor's share are both burdened with the servtude of the right of way in favour of he vendee. The plaintiff property has, it is true, an additional right, viz. the right of passing over the property sold. He has thus a twofold right to describe him self as a shaf Rhalit. The vendee on the other and can base his claim to purchase on one right only, viz. that of being the owner of a dominant tenement. We think that the contention is not quite correct. The vendee stands in the same post on as the pre-emptor. The vendee purchased the share of Afzal un-nissa soma years prior to the disputed sale. The share of Afzal-ua-nissa adjoins the share of the vendor on the west side. That portion of the grove which the vendee purchased from Afzal-ua-nissa also bears the servitude of the right of way in favour of the plaintiff pre-emptor. The vendee can say that he also is the owner of a Servient tenement, i.e. his property bears the same burden as the property that has been sold to him and is now in dispute. We thus find that both the plaintiff pre-emptor and the vendee stands in the same degree whether as owners of document tenements or as owners of servient tenements in respect of different portions of their properties. The contention for the plaintiff-appellant is that if this Court is of opinion that he and the vendee stand in the same degree the property in dispute ought to be divided between him and the vendee We think this contention is correct and is supported by authority Muhammad Yarub v. Kanhai Lal 64 Ind cas. 673 : 19 A.L.J. 869 : 44 A. 83. (1922) A.I.R. (A.) 157. we therefore a low the appeal, set aside the decrees of the Courts below and decree the claim of the plaintiff-appellant to half the property sold on the 2nd November 1920, on the payment of RS.110, no within two months from the date of the decree of this Court. As to costs parties will bear costsin proportion to failure and success throughout, including fees in this Court on the higher scale. In case the money is not deposited within two months from the date of the decree of this Court the claim of the plaintiff will stand dismissed with costs throughout.