TRIVEDI, J.:- Defendant-respondent No.2 Mohammad Husain was the owner of two shops. On 31-10-1955 he sold them to Jagdish Saran, appellant. The plaintiff-respondent, Brij Raj Kishore, who owned an adjoining shop filed the suit for pre-emption of the sale of the two shops on the basis of customary right of pre-emption on the grounds that the water of the roofs of the plaintiff's house and shop used to flow through the same spout along with the water of the shops sold, and that the beams of the plaintiff's shop rested on the wall intervening between the plaintiff's shop and the shops sold. He alleged that he approached the defendant Jagdish Saran also for executing the sale deed of the two shops in his favour, but he paid no heed, hence the suit for pre-emption.

2. The defendant-appellant contested the suit on numerous grounds including the ground that the custom relating to the right of pre-emption was ultra vires the Constitution. The trial court decreed the plaintiff's suit and the decree of the trial court was confirmed by the lower appellate court, hence this Second Civil Appeal.

The main question raised in the Second Appeal was that the custom of pre-emption set up by th