M.B. SHARMA, J —This is defendants second appeal arising out of a suit for pre-emption. The subject matter of the suit out of which the present second appeal arises is a portion described in para 3 of the plaint, of a house described in para 1 of the plaint situated in Chaukri-Purani-Basti, Jat-ka-Kua ka-Rasta, Jaipur. Smt. Phool Kanwar appellant No. 1 the vendor sold her portion in the house to the appellants Gopal and Smt. Durga Devi appellants No. 1 and 2 respectively, the vendees, for a consideration of Rs. 2,000/- on June 13, 1960 and the sale deed was registered on August 5, 1960.

2. Hari Dutt Sharma, the respondent instituted the pre-emption suit on July 3, 1961 in the court of Munsif East, Jaipur against the appellants in which the claim for pre-emption was based on first degree i.e. Shafe-i-Sharik because the building in which the house of the respondent and the appellants were situated had joint stair case, Chowk, Pol and latrine.

3. The suit was contested by the vendor and the vendees namely the appellants, on the ground that the appellants had offered the suit portion of the house to the respondent before the sale and after the sale. The offer was made to the respondent to purchase the house for Rs. 2,000/-, but the respondent declined the offer saying that the value of the suit portion of the house only ranged from Rs. 500 to 700/-. Thus the respondent waived his right to purchase the suit portion of the house and as such, has lost his right of preemption. A case was also set up in the written statement by the appellants that in the former Jaipur State, the right of pre-emption was co-extensive with the Mohammdan Law of pre-emption and,therefore,the respondent had failed to aver and prove the existence of a custom of pre-emption in the Jaipur City as well as having failed to aver and prove that the talabs were made by the respondent, the suit for pre-emption cannot be decreed. It was lastly averred that during the pendency of the suit for pre-emption, the vendees have improved their position by purchasing a Chandani adjoining the suit portion of the house and, therefore, they have also become co-sharer and have thus become pre-emptor of the same class as the respondent. The suit for pre-emption, therefore, could not have been decreed.

4. The learned trial court framed many issues and after trial, decreed the suit of the respondent. The appeal filed by the appellants also failed.

5. The learned trial court which tried the suit held (1) that it is established by judicial decisions that there was a custom of pre-emption prevalent in the former Jaipur State and, therefore, it was not necessary for the respondent to aver in the plaint and prove the existence of such a custom which by recognition by courts become the law, (2) that a suit for pre-emption relating to the Chandani allegedly purchased by the vendees as a result of which the vendees claim to be co-sharers, having been filed against the vendees by the respondent and that suit being pending, the right of pre-emption of the respondent cannot be defeated, (3) that no offer to sell the suit portion of the house for Rs. 2,000/-was ever made by the vendor or the vendees or both to the respondent either prior to the sale or after the sale, and as such, the respondent did not waive his right to pre-empt the property (4) that even otherwise under the Mohammadan Law by mere declining the offer to purchase the house prior to the sale, a right of pre-emption, if any, does not come to an end.

6. The learned lower appellate court while dismissing the appeal of the appellants besides concurring with the learned trial court on the above findings, also held that in the former Jaipur State, the custom of pre-emption was generally known and judicially recognised and thus, it was not necessary for the respondent to plead and prove the existence of such a custom; that it was necessary for the appellants to have taken a plea in the written statement about non-making of "talabs" and bec

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