JUDGMENT
1. This appeal arises out of a suit for pre-emption. On the 8th of January 1914, the defendants Nos. 3 and 4 gave a perpetual lease to the present defendants-appellants before as, of the proprietary rights in an area of 23 bighas odd. Under the lease a nazrana of Rs. 12,999-13-6 was paid and an annual rent of Rs. 23 fixed. In the year 1915, a co-sharer (other than the present plaintiff-respondent) brought a pre-emption suit, which was dismissed both by the Court of first instance and by this Court on appeal. The transferee is a co-sharer in the mahal. The pre-emptor in the first suit was also a so sharer in the same mahal but apparently judging from the judgment of this Court, dated the 17th of May 1917, the transferor, the transferee and the pre emptor were all co-sharers in different thoks and, therefore, under the custom alleged, this Court held that the plaintiff had no right of pre emption as against the transferee. There was a question raised in that case as to whether or not the transfer was in reality a sale dressed up in the form of a lease, but the question was not decided. The present suit was brought by the plaintiff respondent on the 14th of August 1917, some 3 3/4 years after the transaction in question. The plaintiff's case as set forth in his plaint and also emphatically set forth in his evidence, is that the transfer in question was a bona fide prepetual lease and not a sale dressed up in the form of a lease; that there is a custom prevalent in the village under which he as a nearer co-sharer, that is, a co-sharer in the same thok as the transferor, is entitled to a prior right to the lease as against the defendants-appellants. Among other defenses the defendants pleaded that the suit was barred by limitation; that there was no custom at all; that assuming that there was a custom, it did not cover leases at all but only sales and mortgages. They also pleaded that in the present case what had been transferred was not a share but only specific lands and that the custom, if any, only came into operation on the transfer of a share and not of specific plots of land. The Court of first instance held that Article 120 of the Limitation Act applied as the transaction was in the form of a lease, that the suit was, therefore, within time and that the custom was established and that the custom did cover a lease as well as a sale or a mortgage; that the transfer was a transfer of proprietary rights and, therefore, was equivalent to the transfer of a share and the plaintiff was, therefore, entitled to a decree, It accordingly decreed the claim conditional on payment of money.
2. The defendants have appealed. The argument taken before us is that whether the transaction was a sale or perpetual lease, the custom set up by the plaintiff is not proved; that the suit is barred by time; that the plaintiff must be deemed to have assented to the transfer by reason of his great delay in instituting the suit.
3. Taking the first point (limitation), we may point out first of all that the plaintiff's case is not that the transfer in question was a sale dressed up as a lease. He lays considerable emphasis on the fast that the transfer is a lease, pure and simple, and that his suit is within time as Article 120 of the Limitation Act applies. The defendants have nowhere asserted that the transfer was a sale. There was no issue between the parties as to whether the transaction was a sale or lease. The case must, therefore, clearly be decided on the clear assumption that the transfer was a perpetual lease and not a sale. This being so, it is clear that Article 10 of the Limitation Act does not apply and that Article 120 of the Limitation Act does apply and the suit as it stands is, therefore, within time.
4. The nest question for decision is whether or not the plaintiff has proved a custom which gives him a preferantial right to take this lease as against the defendants-appellants. To prove his custom he produced two documents, one an extract from the wajib-ul-arz of the year 1840 and another an extract from the wajib-ul-arz of 1885. The entry in the wajib-ul-arz of 1840 is as follows:
We are at liberty to sell or mortgage our respective properties subject to the right of pre-emption.
5. The meaning of this is quite clear. It lays down that in the cases of sales and mortgages there is a right of pre emption. It goes no further and nobody could possibly say that such a piece of documentary evidence could establish any custom in respect to leases. The document of 1885 runs as follows: "If a co-sharer wishes to transfer his share he shall transfer it first to a near co-sharer and in case of his refusal to remote co-sharers, and if they too refuse to take then to any one he may like." The word used in the vernacular' which has been translated by the English word "transfer" is the word intikal. It is a word which standing alone is sufficiently broad to cover all kinds of transfers but, in our opinion, in judging of the existence of the custom in this village we must read the two documents of 1840 and 1885 together. There is no allegation that the custom has changed in any way. Both documents are put in evidence by the plaintiff. The first document shows clearly that it was only in cases of sales or mortgagee that any right of pre emption arose. The loose use of the word intikal, therefore, in the year 1885 cannot be utilised to broaden the custom in any way. Whatever the meaning of the word "mortgage" may be, whether it includes a simple mortgage or does not include a simple mortgage, the documentary evidence, in our opinio", assuming that it is good evidence of custom, proves that a right of pre-emption exists in the case of sales and mortgages. We may point out that rights of pre-emption in cases of leases are very rare. In our opinion, therefore, the transaction in the present case being lease, pure and simple, does not fall within the custom which has been established by the plaintiff. This alone would be sufficient for the decision of the case. It has been argued, however, that the wajib-ul-arz of 1885 still held good when the suit was instituted, and that this document may be taken to be evidence of a fresh agreement made at the time of settlement between the co-sharers apart from the custom, that the defendants will be bound by that agreement and the, therefore the word intikal should not be confined to sales and mortgages. We would point out that the plaintiff at no stage of the care before to day has taken up the position which is now being taken up. He did not allege any agreement, nor did the defendant. There was no issue and no defense. It is perfectly possible that if this position had been taken up by the plaintiff, the defendant might have had a very good defense to offer, and we cannot at this stage of the case allow, the plaintiff to shift his position and ask to have the whole case re opened. An examination of his plaint and his evidence given in the Court below shows that he definitely took up his position on the basis of custom and refused to move from it. In our opinion the plaintiff has not established his case or a custom which entitles him to take this lease in priority to the defendants-appellants. We, therefore, allow the appeal; the suit will stand dismissed with costs in both Courts, including in this Court fees on the higher scale.