JUDGMENT

Ainslie, J. - This is a suit founded on right of pre-emption. The plaintiff claims as shafee khalit" and has obtained a decree in the lower Appellate Court. The first ground of appeal taken by the defendants, special appellants, is that, whereas the plaintiff claims as khalit" or preemptor in the second degree, it was not open to the Judge to find that he was sharik or pre-emptor in the first degree.

2. This objection is founded on the opening words of Chapter II, on Pre-emption, in Baillie's Digest of Mahomedan Law, page 476. "A 'sharik' (or partner in the substance of a thing) is preferred to 'a khlait' (or partner in its rights, as of water or way)." But it has been brought to our notice by the respondent's pleaders that in the original Arabic version of the Hedaya the word khalit" is used in both places, and sharik does not appear at all; and from my personal experience, I incline to think that in the Bihar districts khalit" is habitually used to represent a pre-emptor of the first degree.

3. It certainly was so in Tirhoot, in the case of Mahadeo Sing v. Mussamat Zaitannissa Ante, p. 45, and in a Sarun case (this appeal also comes from this district) to be found in Syed W