JUDGMENT
1. This is an appeal arising out of a suit for pre-emption in respect of a certain zemindari situate in the village of Katra. Originally this village consisted of two mahals, one of 11 3/4 biswas and one 8 1/4 biswas. The 8 1/4 biswas mahal was subsequently divided into two mahah, one of 3 1/4 biswas and one of 5 biswas. The 5 biswas mahal (which is now a 20 biswas mahal) belonged one-half to the vendors and one-half to the pre-emptors. The vendors have sold their half share to a stranger. The pre-emptors brought their suit to enforce their right, alleging (a) in paragraph 3 of their plaint, that the "custom of pre-emption prevailed among proprietors of the khalsa" as entered in the wajib-ul-arz of the village and also (b) (as set out in paragraph 6 of the plaint) that directly he "got the news of the sale he fulfilled the conditions by the Muhammadan Law for pre emption" and called upon the defendant to transfer the pre-empted property to him for the price entered in the sale-deed. The defendants met the case first of all by denial that there was any custom of pre-emption in the village at all, or that the plaintiffs had a right of pre-emption on the basis of the wajib-ul-arz to which the provisions of the Muhammadan Law applied, that the plaintiffs had not in any way fulfilled the necessary demands. It was alleged that the plaintiffs had actually refused to purchase the property after full notice and, therefore, if they had had any right they had lost it. Five issues were framed, the first: Does the custom of pre-emption prevail in Mauza Katra? This the Court below decided in favour of the plaintiffs and the decision is not seriously contested here. The second issue was: "If so, what are the incidents of the custom, whether those arising under the Muhammadan Law or not?" On this issue the Court held that the rules of Muhammadan Law did not apply. Issue three was: "Under the custom (if any) found to prevail is the plaintiff entitled to pre-empt?" This issue was found in the affirmative. The fourth issue: "Have the plaintiffs performed the preliminaries necessary to pre-emption under the Muhammadan Law?" This issue was left undecided as being unnecessary in view of the finding on the second issue, and consequently evidence on this issue was not taken. The fifth issue was: "Did the sale take place with the plaintiffs' knowledge and after their refusal to purchase. If so, is their right of pre-emption lost." On this point the Court below held in favour of the plaintiffs.
2. The sole point which has been argued before us is, whether or not the rule of Muhammadan Law applied in the present case. It is pointed out that in the wajib-ul-arz the custom as set forth is laid down in the following words: "among the owners of the khalsa separately and among the owners of the milak separately the custom of pre-emption is in vogue," that no incidents of the custom are set forth and that, therefore, the principle that has been laid down in a long series of rulings of this Court should be applied and in such cases the rule of Muhammadan Law must be followed. The latest decision on the point is to be found in Jagdam Sahai v. Mahabir Prasad 2 A.L.J. 482 : A.W.N. (1905) 190 : 28 A. 60. The judgment therein refers to Ram Prasad v. Abdul Karim 9 A. 513 : A.W.N. (1887) 146 and it is an admitted fact that those rulings have been consistently followed in this Court. The lower Appellate Court has tried to distinguish the present case from those quoted, on the ground that the wajib-ul-arz stated that the right of pre-emption exists among the owners of each class of property as such, but if the waj-ib-ul-arz had merely stated that the custom existed, the learned Additional Judge would have felt bound by the rulings cited and would have applied the Muhammadan Law in the case. Wo do not think that the language of the present wajib-ul-arz is such as to enable us to distinguish it from those in the cases quoted. The meaning of the document is simply this, that among the co-sharers of the kkalsa the custom of pre-emption prevailed. None of the incidents are set forth and it seems to us clearly a case in which the right is co-extensive with that given by the Muhammadan Law. We, therefore, before deciding the case, must have a decision by the Court below on the fourth issue framed by it. The parties will be allowed to give fresh evidence on that point relevant to the issue. Ten days will be allowed on receipt of the finding for objection.