Full Judgment
Henry Richards, C.J. and Tudball, J.
1. This appeal arises out of a suit for pre-emption. The sale dates back to the year 1910, and the present suit was instituted the same year. The plaintiff based his suit on Muhammadan law. When the suit had been pending for some time (apparently as a reply to paragraph 2 of the written statement), the plaintiff applied to the Court for leave to amend the plaint by claiming pre-emption under Muhammadan law and in the alternative under the wajib-ul-arz. The Court refused to grant this amendment on the ground that it would alter the nature of the cause of action. The Court then proceeded to try the case as a case based on Muhammadan law. It found that the conditions of Muhammadan law had not been fulfilled and dismissed the plaintiffsuit. The plaintiff appealed. The learned District Judge held that an application for amendment might have been made, but it was made altogether too late. It seems to hare assumed that a custom of pre-emption did prevail, and then dismissed the suit without deciding any other issues. It held that, inasmuch as a custom of pre-emption prevailed, a claim under the Muhammadan law could not be sustained.
2. In our Opinion, where a plaintiff seeks pre-emption, he ought to be allowed to put his case in the alternative, and we think that in the present case the amendment should have been allowed, but even without an amendment the court could have decreed the plaintiff's claim under the custom if it found that such a custom prevailed and the plaintiff brought himself within it. The real object of the suit was to get possession by pre-emption, and such a course could not possibly have taken the other side by surprise, because it was the defendant who was setting up the existence of the custom in order to defeat the plaintiffs claim under the Muhammadan law. In effect, the judgment of the lower appellate court has refused the plaintiff a decree for pre-emption on the ground that a custom exists under which he has a right to get it. We wish it clearly to be understood that, in the foregoing remarks we are in no way expressing any opinion on the merits of the case. For example, the court of first instance has held that the plaintiff was offered this property in the first instance and refused to take it. If this should turn out to be the fact, the plaintiff cannot possibly succeed either under the Muhammadan or customary law. Another point which has not been gone into by the courts is whether or not, assuming that there is a custom of pre-emption prevailing in the village, it applies to the property the subject matter of the present suit. We may point out that it does not follow that because there is a custom of pre-emption amongst the zamindars, there is also a custom of pre-emption prevailing between muafidars. An extract from the wajib-ul-arz might under certain circumstances be sufficient to prove the existence of the custom between the zamindars while it would be quite insufficient to prove the existence of the custom between muafidars.
3. Before finally deciding the appeal we think it desirable to send down certain issues to the court below. We accordingly refer the following issues:
(1) Did the plaintiff refuse to purchase the property?
(2) Does any custom of pre-emption prevail which applies to the property the subject matter of the suit, and if so, is the plaintiff entitled under that custom to a decree in respect of the property which formed the subject matter of the two sale deeds?
(3) Did the plaintiff perform the conditions required by the Muhammadan law?
(4) What was the real price?
4. If the court finds it convenient without dislocating its business it will dispose of those issues as soon as possible. The parties may adduce further evidence relevant to the second issue but to no-other issue. On return of the findings the usual ten days will be allowed for filing objections. The case will be put up early on return of the findings.