JUDGMENT
1. This is an appeal by the defendant vendee in a suit described as one for pre-mortgage i.e., certain Zemindari shares have been mortgaged to the appellant and the plaintiffs came into Court claiming that as co-sharers in the villages in question they possess a preferential right established by village custom to obtain a contract of mortgage in their favour on the same terms on which the mortgage had been granted to the appellant. There was controversy in the Trial Court also as regards the amount of the mortgage-debt and this point is also raised in the Memorandum of Appeal before us. We are concerned, however, mainly with the question whether the plaintiffs have or have not established their preferential right on the basis of village custom. The main evidence consisted of Records of Rights for the three villages namely, Kusmaha, Kanai and Doboli. as regards the Settlement Record of 1833 the entry would seem prima facie to record a customary right of pre-mortgage in favour of any co-sharer in the village such as that upon which this claim is based, but in respect of this very same village we have be ore us also the Settlement Record of the year 1860. The custom there recorded is expressed in very peculiar terms. It is noted in the first instance that the co-sharers are in possession and occupation of their own shares and that there has been no sale, mortgage or lease, in favour of any person. Hereafter it is stated the said co-sharers possess unlimited power of transfer subject only to the condition that any co-sharer desiring to sell must first ascertain the wish of the other co-sharers. If the entry stopped there, it would be beyond question that it recorded no right, of pre-mortgage. There is, however, one further phrase which is certainly not easy to interpret. Literally translated it runs asfollow:--"In, case none of the co-sharers is prepared to purchase or to accept a mortgage one lease then the co-sharers in question may sell to a stranger." As it stands this entry does not purport to record a right of pre mortgage but merely in poses a further and certainly somewhat peculiar and unusual restriction on the right of sale. The Trial Court has come to the conclusion that the word "farokht" as used in this passage must be given a general sense and read as equivalent to "intiqal" or transfer. We are aware of no other case in which, such an interpretation has been put upon the word "jarorht." It is in consistent with the ordinary meaning of the word an d we are not prepared to say that anything in the particular text obliges us to put so unusual a meaning on the word. The conclusion we feel driven to is that the wajib-ul-arz in question does not record the existence of a customary right of pre-mortgage. The case is exactly the same regarding the village of Kusmaha except that here we have before us only the Settlement Record of 1860, and not that of 1833. The share in the village, Daboli is a very small one in proportion to the rest of the properly mortgaged and we may take it from the judgment of the Trial Court that the existence of a customary right of pre-mortgage in that village was not very seriously contested. We think it at least doubtful whether the entry in the wajib-ul-urz of village Doboli made at the Settlement of 1860 ought in accordance with the canons of interpretation accepted by this Bench to, be treated as a record of custom on a record of contract. But in any case if we are not prepared to decree this claim in respect of the properties in villages Kusmaha and Kanail we have no materials before us on which a decree could be framed regarding the small share in Doboli. This suit must in our opinion succeed or fail as a whole. There was very little other evidence in the case. The most important item apart from the entries in the settlement papers already referred to was a decree in a contested suit decided on the 25th of May 1920 in which the existence of a customary right of pre-emption. was affirmed in favour of co-sharers in villages Kusmaha and Kanail. From the judgment which is on the record it would seem that this was a claim of pre-mortgage, although the decree as printed suggests an ordinary claim to pre-empt a sale. At any rate it is quite certain that the learned Additional District Judge who decided that case in appeal did not touch upon the question which has caused us most difficulty namely the correct interpretation of the entries in the Wajib-ul-arz of 1860 for the villages of Kusmaha and Kanail. He assumed throughout his judgment that if there was a customary right of pre-emption at all in those villages it must apply to mortgages as well as to sales. under_the circumstances we cannot treat Irs decision as a particularly strong piece of evidence in favour of the existence of the customary right pleaded by the plaintiff in this case. The conclusion, we come to is that the plaintiff has not proved to our satisfaction the existence of the customary right upon which his claim is based. We set aside the decree of the Court below and in lieu there of dismiss this Suit with costs throughout, including in this Court fees on the higher scale.