JUDGMENT
1. This appeal arises out of a suit for pre-emption. The plaintiff alleges that a custom of pre-emption prevailed and adduced in evidence an extract from the wajib-ul-arz of 1872. This is the only evidence adduced on behalf of the plaintiff of the existence of the custom. One has only to peruse the entry to come to the conclusion that it was almost impossible that this could have been a record of a custom. It provides amongst other things that as soon as a stranger has bought or mortgaged the property, the co-sharers in a certain order are entitled to take the property in the case of a sale at sixteen years' purchase and in the case of a mortgage at eight. It further goes on to record a right of a person to redeem a mortgage in which he has no interest whatever. As against this piece of evidence (if it can be so called), the defendant vendee adduced a decree of the year 1878. In that litigation the plaintiff, who now seeks pre-emption, had purchased a share in the village as a stranger. A suit was brought against him for pre-emption, the then plaintiff basing his claim upon this very entry in the wajib ul-arz. The present plaintiff (then vendee) pleaded that there was no custom and that the record in the wajib-ul-arz was merely the record of a contract, which was not binding on his vendor, because it had not been verified by him. Beading the judgment in the previous litigation the then plaintiff and his advisers apparently hardly thought it possible to rely upon the entry in the wajib-ul-arz as the record of a custom. It was relied upon chiefly as the record of a contract. Had it been possible for the then, plaintiff to rely upon it as a custom, it would have been greatly to his interest to do so, because he would have been saved from any real or supposed obligation to prove that the wajib-ul-arz had been verified by the then vendor. It may be mentioned in passing that the wajib-ul-arz was then only about six years old, and presumbly many of the persons who had verified it were still living. The lower Appellate Court has found in favour of the plaintiff. In doing so the learned Judge has not discussed, or apparently considered, the language in the record in the wajib-ul-arz. The language of that document ought certainly to have been taken into consideration when considering the existence or non-existence of the custom. In dealing with the previous litigation the learned District Judge says: The only documentary evidence urged on behalf of the appellants is a copy of a judgment of the Subordinate Judge of Azamgarh, dated the 31st of May 1878. It appears that the plaintiff to this suit was a vendee in that case and that it was dismissed on a finding that a contract or custom of pre-emption was not proved. I think a solitary judgment does not rebut the presumption raised by the record of custom of pre-emption in the wajib-ul-arz."
2. From these remarks it would appear that the learned District Judge completely lost sight of the significance of the fast that the person who was now seeking to get the property had actually pleaded in the year 1878, that there was no right of pre-emption founded either upon custom or contract and that he had been successful in this plea. In our opinion there was no trial of the issue by the lower Appellate Court on the evidence and we are entitled to deal with the evidence ourselves. As already pointed out, the sole evidence in support of the existence of the custom was the entry in the wajib-ul-arz, which (as we have already said) on the very face of it almost disproves that it is the record of a custom; while on the other hand we have the plaintiff coming to this village as a stranger in the year 1878 after pleading successfully that there was neither custom nor contract. In our opinion the evidence was wholly insufficient to establish the existence of a custom. We accordingly allow the appeal, set aside the decrees of both the Courts below and dismiss the plaintiff's suit with costs in all Courts.