JUDGMENT Henry Richards, Kt. C.J. and Tudball, J.
1. This appeal arises out of a suit for pre-emption. Both the courts below decreed the claim. The defendant vendee appeals. He argues first that the extract from the wajib-ul-arz is ambiguous and not sufficient to prove the existence of the custom. He also argues that there was other evidence as to the non-existence of the custom which the court below has failed to appreciate; and lastly, it is argued that the court was not competent to set aside the lease mentioned in the plaint. We can see no ambiguity in the clause in the wajib-ul-arz. We, therefore, think that the courts below were right in holding that it was good prima facie evidence of the existence of a custom of pre-emption in this village, and that it was an incident of that custom that a relation ek-jaddi had preference over a co-sharer who was not ek-jaddi. The court below has found that the lease was not bona fide and was merely part of a scheme to avoid pre-emption. We are-bound by this finding in second appeal, and therefore we cannot differ from the court below on this question. One of the witnesses for the defendant vendee deposed that there had been several sales to strangers. The court of first instance refers to the decision in Sewak Singh v. Girja Pande (1904) 2 A.L.J., 6. Stanley C.J., at page 9 of the report, says: "The mere fact that evidence was given that sales and mortgages had taken place in the villages as to which no pre-emptive claim had been made does not negative the existence of the custom." With great respect, we think that this remark goes too far. In our opinion, where the court is trying the issue of the existence or non-existence of a custom every instance of a sale to a stranger is material evidence which the court ought to take into consideration and weigh when coming to a conclusion on the issue. In the present case having regard to the remarks of the court of first instance, which have been more or less accepted by the lower appellate court, we have gone into and considered the evidence that was given by the vendee on the subject of sales to strangers. The only evidence there was that of a witness who was undoubtedly somewhat hostile to the plaintiff, in which he stated in vague terms that during his recollection these 5--7 sales were to strangers. In not a single one of these alleged cases was the sale-deed produced, nor were even the names of the majority of the vendees mentioned. Except for the vague statement that the sales were to strangers, the court was not informed who the vendees were. In our opinion, this was not the proper way to prove instances of sales to strangers. The sale-deeds should have been produced, or certified copies of them. It should be clearly and distinctly proved to the court who the vendees were and any other circumstances connected with the sales. Under these circumstances, we see no sufficient reason to set aside the decree of the court below. We, therefore, dismiss the appeal with costs.