JUDGMENT
1. This appeal arises out; of a suit for pre-emption and the question to be determined is whether the entry in the wajib-ul-arzes of 1833 and 1860, relied upon by the plaintiff is the record of a custom or of a contract. We have considered the terms of both the wajib-ul-arzes and are of opinion that they record a contract entered into by the co-sharers. In the year 1833 only two persons owned the village in question and they executed a wajib-ul-arz in which they stated that they agreed to abide by the terms contained in it, after fully understanding them, One of the clauses contained in the document relates to pre-emption and that clause is to the effect that if any one amongst the co-sharers wished to transfer his share in whole or in part by sale or mortgage, it would be necessary for him first to inform his co-sharers in the village and to sell to them at the price fixed or mortgage at the amount agreed upon. If the transfer was made to a stranger without informing the co-sharers it would be invalid. This seems to us to be clearly the record of a contract. In the later wajib-ul-arz of 1860 the preamble is very similar and the conditions as to pre-emption are not the same as in the wajib-ul-arz of 1833, but very different. The right of pre-emption is given first to near co-sharers then to co-sharers in the thole and then to co-sharers in other thoks. The plaintiff claims as a near co-sharer. The later wajib-ul-arz also seems to us to be the record of a contract and could not be the record of a custom as the conditions contained in it as to pre-emption differ in material particulars from those mentioned in the earlier wajib-ul-arz of 1833. As the term of the settlement in each case has expired the contract is no longer binding on the co-Sharers. The learned Vakil for the respondents relies on the ruling in Daryao Singh v. Jahan Singh 31 A. 539 : 6 A.L.J. 735 : 3 Ind. Cas. 903. The head-note to the report of the case, namely that a variation in the terms of the later wajib-ul-arz did not necessarily affect the custom, is not borne oat by the judgment. What was observed in the judgment was this: "As regards the preference to own brothers there is really no difference and it is after all with that with which we are concerned in this appeal and that is all that we find, viz., that in the village there was a custom by which on a transfer a right of pre-emption arose in favour of the own brother of the transferor." Independently of the wajib-ul-arz there was no evidence of the alleged custom. On the contrary the learned Judge of the lower appellate Court found that in the village in question there had never been an instance of pre-emption. The lower appellate Court was, therefore, right in holding that no custom of pre-emption prevailed and that the plaintiff's suit must fail. We accordingly allow the appeal, set aside the judgment of the learned Judge of this Court and restore that of the lower appellate Court with costs in all Courts. The costs of both appeals to this Court, will include fees on the higher scale.