JUDGMENT

Iqbal Ahmad, J. - This is an appeal by unsuccessful plaintiffs whose claim for pre-emption has been dismissed by both the Courts below on the ground that a custom of pre-emption did not prevail in the village in dispute. The property sold is situated in village Garhia Madsua. This village is in pergana Patiyali. The plaintiffs are co-sharers in and the vendees are admittedly strangers to village Garhia Madsua. The defendants, however, contested the suit on the allegation that a custom of pre-emption did not prevail in the village. In proof of the existence of custom the plaintiff relied on a wajib-ul-arz of 1867. This wajib-ul-arz is a curious document. It is a wajib-ul-arz not with respect to any mahal or to any village but it purports to be a wajib-ul-arz of all the villages of Pargana Patiyali. A custom of pre-emption is recited in this wajib-ul-arz. The vendees on the other hand filed a copy of the wajib-ul-arz of village Garhia Madsua. In this wajib-ul-arz there is no mention of any right of pre-emption.

2. In accordance with the provisions of Section 5, Pre-emption Act, a right of pre-emption is to be deemed to exist in mahals or villages in respect of which any wajib-