JUDGMENT
1. This is a defendant's appeal. The property in suit is a bit of land lying within the limits of the village Yahyapur which forms part of the town of Allahabad. The plaintiff is a co sharer in the Zemindari, sixteen annas mahal of Yahyapur, and he claims that he has a right of pre-emption in respect of this plot. Both the Courts below have decreed the claim. The defendant comes here on appeal and he urges that, on the face of the documentary evidence put forward to prove the case, the plaintiff has no right of pre-emption whatsoever as against him. The land in question is part of what is known as the hakkiyat mutfurrika; that is to say, the miscellaneous plots within the boundary of the village. An examination of the khewat shows clearly that the Zemindari Part of the village now consists of an area of only 11 bighas 15 biswas, that the miscellaneous plots total to 26 bighas 4 biswas and that the inhabitanted site covers 158 bighas 11 biswas. In the wajib-ul-arz, on which the plaintiff depends, a right of pre-emption is given in Clause 3 of Chapter I clearly to a co-sharer in the Zemindari in the case of a sale by another co-sharer of his right. In Chapter III, Clause 3, there is also a distinct statement that the owners of the miscellaneous plots have a right to sill their property as they please without the permission of the Zemindar. The Court below appears to have overlooked this portion of the document and it is quite clear that the custom of pre-emption prevailing in the village is one only as among the owners of the Zemindari, and the owners of the miscellaneous plots have a full right to sell their property to whom they please without even asking the permission of the Zemindar, a right which they would not have had if the custom of preemption included them, In our opinion, the appeal is a good one. We allow it and set aside the decrees of the Courts below. The plaintiff's suit will stand dismissed with costs in all Courts.