This appeal comes from Shahpura and arises out of a suit for pre-emption. The plaintiff alleged that certain house property near Mohalla Kotharian the town of Shahpura belonged to Mangilal defendant No, 1 who sold it to Motilal defendant No. 2 for a sum of Rs. 225/-, as per sale deed Asoj Sudi 13, Samvat 2000 corresponding to nth October 1943. This property is adjacent to the plaintiffs residential house on the north. The plaintiff in accordance with the custom which prevailed in Shahpura was entitled to preempt the property but the defendant No. 1 without his knowledge sold the suit property to defendant No. 2 immediately with a notice to transfer the property to the plaintiff but the defendant No. 2 informed him that he had already transferred it to Kesarbai, Bhanwarlal and Ganga Bishan defendants No. 3, 4 and 5.

2. Bhuralal, Mathuralal and Sugan Chand defendants 6 to 8 also brought a suit for the pre-emption of the same property on account of the same transaction. Both the suits were consolidated and the last named three persons were impleaded in the present suit as defendant No. 6, 7 and 8.

3. The defendants No. 1 to 5 pleaded inter alia that there was neither any custom, nor any law of preemption according to which the plaintiff was entitled to pre-empt the property. The learned Civil Judge Shahpura held that it was not proved that there was any law or custom of preemption among the Hindus in Shahpura and consequently dismissed both the suits.

4. The plaintiff Indermal of the present suit went in appeal to the Court of the District Judge Shahpura but was unsuccessful. He filed the present appeal against the Judgment and decree of the first Appellate Court before the former Rajasthan High Court and before the appeal could be disposed of this High Court came into being and replaced the High Courts of the different Covenanting State.

5. During the appeal Mangilal respondent died and in his place Mohanlal, Madanlal and Sohanlal who are his sons have been substituted.

6. I have heard the learned counsel for both the parties. The learned counsel for the appellant has argued that in the first place no clear issue was framed on the point whether the custom of pre-emption among the Hindus prevailed in Shahpura and therefore the attention of the parties was not focused on this question. Secondly the evidence as it was quite sufficient to prove the custom of Shahpura.

7. To the first objection of the learned counsel for the applicant, the learned counsel for the respondent replies that an issue was framed on the question of custom and if, according to the plaintiff, the issue was not properly framed, he should have made an objection in the first court. He however, did not take any such objection and went to trial on the issue as framed and produced his evidence. After the case was decided by the first court, he did not take any objection in his grounds of appeal on this point in the first appellate court. Even in the ground of appeal of this court, he has not taken any of such objection.

8. On giving my careful consideration to the argument on this point, I am of opinion that it is too late in the day for the appellant to raise this point. If he was not satisfied with the issue as framed, it was for him to move the first court to amend the issue. He did not do so and produced his evidence to prove that custom of pre-emption obtained among the Hindus of Shahpura. When the suit was decided against him he did not take any objection on this point before the lower appellate court. Even in his grounds of appeal before this court, such an objection is conspicuous by its absence. From the evidence produced by the plaintiff it is clear that he fully understood that one of the things he had to prove was whether there was a custom of pre-emption among the Hindus of Shahpura. It cannot therefore be said that the plain-tiff was misled by the absence of the separate issue on the point whether the custom of pre-emption obtained among the Hindus of Shahpu

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