Full Judgment
Lindsay, J.
1. Both these appeals have arisen out of two suits for pre-emption and they may be disposed of by one judgment. The cases have been up in appeal here before and were sent back for redisposal to the Court of the learned District Judge of Bulandshahr.
2. The question before us is whether a custom of pre-emption admittedly obtaining in the village of mauza Ganaura Shaikh, applies in respect of the particular property now sought to be pre-empted. It is to be mentioned here that the property in question is situated in a mahal known as mahal Alladad. The plaintiffs are co-sharers with the vendor in mahal Alladad. The vendee is admittedly a stranger.
3. The plaintiffs relied upon what was set out in the document known as the 'dastur dehi' prepared in the year 1296F at the settlement of Mr. Stoker. The dastur dehi must certainly be taken to be a record of custom, and there can be no doubt that the custom of pre-emption is recorded. The language of the document is as follows:
In joint zamindari mahals and in pattidaris, if any co-sharer desires to transfer his property, he must offer it first to co-sharers who are near relations descended from the same common ancestor. After them he must offer it to co-sharers in the patti, mahal or village (gaon). If none of these persons desire to acquire the property, the vendor is at liberty to transfer to a stranger.
4. It was said in the Court below, and it was not disputed there, that at the time when the settlement took place, mahal Alladad Khan was the exclusive property of one person, namely, Alladad himself. There is no evidence on the record to the contrary.
5. On the basis of this fact it has been argued before us by the vendee that, although a custom of pre-emption is recorded in the dastur dehi, nevertheless the plaintiffs are not entitled to take advantage of it beoause the custom could not apply to any property situated in mahal Alladad. The argument is that because the mahal in question was at the time of the settlement, and it seems for some years afterwards, the sole property of Alladad, the custom would not apply. There is evidence on the record to show that the mahal continued in the possession of Alladad Khan up till the year 1897. He then sold it to another single proprietor who subsequently sold it to a number of persons who are related to the present vendor and pre-emptors.
6. We are, however, unable to accept the argument that the 'plaintiff's are not entitled to exercise a right of pre-emption under this custom. Mr. Dube relied on the case of Kamrunissa v. Sugra Bibi (1917) 39 All. 480. There dealing with a mauza or village which in the year 1881 had become the property of a single owner, the Pre-emption Bench of this Court held that the custom of Pre-emption which had undoubtedly existed prior to that time had become dead. The learned Judges differed from the Judge of the Court below who was of opinion that in the circumstances the custom was not dead but only in abeyance in other words, the learned District Judge seemed to think that after the village ceased to be the property of a single owner and came into the possession of several co-owners, the custom would revive. It was laid down distinctly, however that the custom was dead and that a new custom would have to grow up before any one could assort a right of pre-emption.
7. It is to be noticed that in this case the Bench was dealing with a mahal which was co-extensive with the mauza, and at page 481 of the report they say in support of their judgment that custom means a practice prevailing amongst a certain community. If that; community has been reduced to a single individual, it is impossible that the practice can any longer exist.
8. That argument, however, cannot be applied to a case like the one now before us. All that is made to appear is that a particular portion of this village of Ganaura Shaikh had at some time or other become a mahal in possession of a single owner. That fact however, would not indicate the disappearance of the village community, and it seems to us perfectly clear that the reasoning which was applied in Kamrunnissu v. Sugra Bibi (1917) 39 All. 480 cannot hold good in a case like the present. We are satisfied, therefore, that the vendees cannot maintain in this case that the plaintiffs are not entitled to pre-empt the property under the custom recorded in the dastur dehi of 1296 Fasli. The judgments of the Courts below are correct; both the appeals fail and are dismissed with costs.