Full Judgment
Henry Richards, C.J. and Tudball, J.
1. This appeal is connected A. No. 140 and No. 141 of 1916. They were all disposed by one judgement. All three appeals arise out of pre- In suits The plaintiff in each case came into court seek- property and relying both upon alleged Muhammadan law. The court of first ins-no in each case dismissed the suit. The lower appellate court reversed the decree of the court of first instance. That court has held that there is an existing custom of pre-emption under which the plaintiff is entitled to get possession of the property upon Payment of the price found to have been paid by the defendant vendee. The court below, having decided that the custom of pre exemption existed, felt it unnecessary to consider whether required by Muhammadan law had been complied We may assume for the purposes of the present appeal year 1881 there was a custom of pre-propriety. we the property of a single proprietor. It seems to us quite impossible that there could be a custom of pre-emption of a single individual, that individual was entitled to dispose of his property to any one he pleased without it being subject to any right of pre-emption (unless the sale was made expressly subject to such right). We have already decided this same question in another case, See F. A. No. 302 of 1910, decided on the 22nd of March, 1912 Powell v. Powell. In our opinion the court below was wrong in holding that a custom of pre-emption existed at the time of the sale in question. No doubt a custom might grow up again in the course of time, but there is no evidence to justify any such finding in the present case and this is not the finding of the court below. Nor can it be said that a contract between the co-sharers has been proved. In 1881 (when the latest record of pre-emption was made) the property was, as already stated, in the hands of a single proprietor. The fact that there is such a record appearing in the wajib-ul-arz of a mahal in the hands of a single proprietor is another instance that the entry in the wajib-ul-arz is not always trustworthy. Before finally deciding the appeal, we must refer the second issue to the court below, namely, whether the formalities required by the Muhammadan law were performed by the plaintiff, pre-emptor. This issue will be deemed to be taken in all three cases and the court will decide the issue upon the evidence already on the record.