Wanchoo, C.J. — This is a second appeal by the plaintiffs in a suit for pre-emption.

2 Appellants Ahmed Bux, his two sons Nasiruddin & Rahim Bux, and three grand-sons Md. Hanif s/o Nasiruddin, and Md. Husain & Md. Shafi sons of Mubarik Husain filed a suit for pre-emption of certain property sold by Hariballabh, Girdhari & Dhokal to Ram Vilas & Ladhu on 29th May 1941 for a sum of Rs. 625/-. This suit was filed on 9th September 1941 and was suit No. 655 of Smt. 1997. Mubarik Husain, another son of Ahmed Bux, filed a second suit for pre emption in his own right on the 1st of February 1942 against the same vendors and vendees in respect of the same property. This was No. 48 of Smt. 1998. These two suits were consolidated by an order dated 13th December 1942. The respondents contested the suits on various grounds and pleaded inter alia :

(1) that the plaintiffs were not the owners of the adjoining property and had no jointness in the intermediate well;

(2) that there was no custom of pre-emption in the town of Bhilwara where the property was situated;

(3) that Mubarik Husain was the manager of the family of the plaintiffs and he had agreed on behalf of the plaintiffs to the sale and the plaintiffs were therefore, estopped from enforcing the right of pre-emption;

(4) that the vendors and the vendees were Hindus, and the plaintiffs being Mohammedans had no right of pre-emption; and

(5) that the talabs required by Mohammedan Law had not been made.

3. The trial court after evidence held the plaintiffs to be owners of the adjoining property and also joint owners with the vendors in the intermediate wall, but found against the plaintiffs on the other points stated above. A joint appeal was filed by the plaintiffs in the two suits, but it was dismissed by the District Judge. On all the points decided against the plaintiffs, the learned District Judge agreed with lower court. He also held that the adjoining property did not belong to the entire set of plaintiffs, and the document of title being in favour of Nasiruddin, Rahim Bux & Mubarik Husain also, the remaining four plaintiffs were strangers and, therefore, even if Nasiruddin, Rahim Bux & Mubarik Husain were entitled to a right of pre-emption, that right had been lost by joining strangers in the suit.

4. On second appeal, the learned Judges of the Old Rajasthan High Court observed that the lower courts had erred in not framing issues on the existence of the right of pre-emption and framed two issues and directed the trial court to record evidence and to send its findings. The issues were as follows :—

(1) Whether there existed a custom of pre-emption in the town of Bhilwara?

(2) If such a custom existed, whether joint ownership of a portion of the property sold, or the ownership of an adjoining property gave rise to the right of pre-emption according to such custom?

The trial court found in favour of the plaintiffs on both the issues and sent its finding to that High Court, but before the appeal could be decided, it has come by transfer to this court.

5. It appears from a perusal of the record that both parties have conceded that there is a custom of pre-emption in the town of Bhilwara. The appellants have also produced certain decisions of the highest court in Mewar, in which the custom of pre-emption was recognized in Bhi wara. Learned counsel for the appellants has also referred to a decision of the final court of Appeal in Mewar — Vishnulal and others vs. Fazal Hussain and others (Civil Appeal No. 3 of Smt. 2000 decided on the 18th of April 1945 and approved by the Maharana of Udaipur on the 22nd of April 1945) in which the following summary of the law of pre-emption in Mewar has been laid down:

(1) "Pre-emption has been in force in Mewar from times immemorial and has come to be recognized as the customary law of the land and applies to all residents of Mewar regardless of their religious persuasion.

(2) The custom having had its origin in the Mohammedan Law, that law must be applied where there

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