( 1 ) THESE are eight appeals brought by the defendant vendees and they arise out of suits which were brought by the plaintiff-respondent for pre-empting eight sales of specific plots of land situate in village Gangoh, mahal Mazbata. They were tried together and are governed by the same judgment of the trial Court as also of the lower appellate Court It is, therefore, convenient to dispose of them by one judgment.

( 2 ) IN order to decide these appeals, it is necessary to understand exactly what the nature of the plaintiffs case was. shortly put, the position taken up by the plaintiff, who is the respondent in these appeals was that he was a co-sharer in another khewat in the same mahal and that under a custom recorded in the wajib-ul-arz relating to this village he was entitled to pre-empt the property in suit as against the defendants who were not co-sharers in the village at all. It is important to appreciate that the plaintiff has based his case neither upon the Agra Pre-emption act, nor upon the general Muslim Law of Preemption. The specific case set up by him was that he was entitled to pre-empt the eight plots in question under a general custom which was to be found recorded in the wajib-ul-arz which was relied upon by him in these cases.

( 3 ) THE suit was resisted by the appellant-vendees on the ground that there was no custom of pre-emption in the village, that the custom of pre-emption, if any, had fallen into disuse as the area in dispute had come to be included in the notified area and that the plaintiff was not a co-sharer in the village. No ground to the effect that the plaintiff was not a resident of the village and that for that reason under the terms of the wajib-ul-arz he could not pre-empt the property, was taken in the written statement. No issue on that point was framed by the trial Court or the lower appellate Court. The point that under the terms of the wajib-ul-arz any resident of the village irrespective of the fact whether he had any property or not could pre-empt the property, provided he was a resident of the village was taken for the first time in second appeal. Obviously, a point which raises a question of fact cannot be allowed to be taken up for the first time in second appeal. Consequently, I have not allowed the appellants to take up that plea.

( 4 ) BOTH the Courts below decreed the plaintiffs suit. The defendants have now come up in appeal to this Court. The wajib-ul-arz is in the following terms: "every co-sharer has power to make a transfer of his respective share entered in khewat khatauni by means of sale, mortgage and gift. If any co-sharer wants to make a transfer, the property will be taken at first by own brother, Shikmi brother and collaterals and then by the pre-emptor. "

( 5 ) IT was attempted to be argued by Mr. Kazmi that this wajib-ul-arz represents a contract and is not the record of a custom. That argument cannot be allowed to prevail in view of the very decided opinion expressed by their Lordships of the Privy Council in Sheobaran Singh v. Kulsumun-nissa, 25 ALL. L. Jour 617 at p. 619. Viscount Dunedin in this case quoted with approval the observations of Chamier J. , in the Full Bench case of Returaji Dubain v. Pahalwan bhagat, 33 ALL. 196 : "we have all of us seen wajib-ul-arzes which contain provisions which ought not to be in them. In some, no doubt, language may be found which shows clearly an attempt to create a right of pre-emption. In others, there is an obvious contract between the co-parceners for a right of pre-emption. But where the contrary is not shown, a provision in a wajib-ul-arz relating to pre-emption should be presumed to be the record of a custom, and this rule has been affirmed repeatedly by this Court," If was for the appellants to prove that the provision in. the wajib-ul-arz relating to pre-emption should not be presumed to be a record of custom but was a record of contract. They failed to do so and on a fair reading of the wajib-ul-arz it