JUDGMENT

1. The only question in this appeal is whether or not the record-of-right of pre-emption is of a right arising from contract or existing by custom. This question depends upon the provisions of the wajib-ul-arzes of the village of 1267 and 1295 Faslis. The village in question is situate in the Saharanpur District. The Courts below held that the record was one of a custom and not of a contract and that, therefore, notwithstanding that the settlement had come to an end, the plaintiff was entitled to pre-empt the sale effected in favour of the defendant-appellant.

2. In the wajib-ul-arz of 1267, which is instituted "wajib-ul-arz, Yani dastur dehi mauza Sidhauli" after setting out the names of the co-sharers in the village, there is the following recital: "Whereas a new settlement of our village from July 1860 to 1890 for a period of 30 years has been made on a revenue of Rs. 484 annually, therefore, the agreement of us, proprietors and lambardars, is that till the term of this settlement and in future till the completion of the next settlement, we shall remain bound and carry out." The sentence is incomplete, it not being stated what the signatories to it agreed to carry out. But it appears to us to be clearly the intention that they were to carry out the provisions of the document contained in the subsequent clauses and that some such words as the provisions herein contained must be supplied.

3. In the later wajib-ul-arz, after dealing with the provisions relating to the payment of rent, partition and other matters, the document concludes with the following words: "in regard to the remaining customs of the village, the wajib-ul-arz of 1267 Fasli should be referred to."

4. In the Courts below reliance Was placed by the appellants upon the rulings in Maratib Hussain v. Alani Ali (1907) A.W.N. 285 and Budh Singh v. Gopal Rai (1908) A.W.N. 246 : 5 A.L.J. 539. In the first mentioned of these cases, the wajib-ul-arz of the year 1861 declared that the zamindars of the village which was in the District of Saharanpur would be bound by and act upon the under-mentioned conditions for 30 years, until the completion of the next settlement and amongst the under mentioned conditions were certain conditions relating to the right of pre-emption. A fresh settlement was commenced in 1890 and in the wajib-ul-arz prepared at the time of that settlement, it was provided that as to remaining customs in the village the record-of-right prepared in the former settlement is to be looked at. The language of these two wajib-ul-arzes is very similar to that of the wajib-ul-arzes which are relied upon in the case before us. It was held in that case that the earlier wajib-ul-arz recorded not a custom but a contract which camo to an end with the term of the settlement and the later wajib-ul-arz could not be construed as the record of a custom which sprung up in the interval of 30 years between the two settlements and there was, therefore, no right of pre-emption in the village. This was an appeal under the Latters Patent from the decision of one of us and that decision was upheld by a Bench of two Judges of this Court, of which the other of us was a member. It was followed in the case of Mohammad Subir v. Sati Ram and Ors. First Appeal No. 222 of 1905, decided on the 22nd of July 1907, the particulars of which are given in a note to the report of the case of Maratib Hussein v. Alam Ali (1907) A.W.N. 285. In the second mentioned case of Bndh Singh v. Gopal Rai (1908) A.W.N. 246 : 5 A.L.J. 539, the wajib-ul-arz of a village in the same District of Saharanpur of the year 1867 contained an agreement on the part of the khewatdars of the village that up to the term of the settlement and in future up to the termination of the next settlement, they would abide by the following terms and act upon them. Amongst the subsequent provisions were certain conditions relating to the right of pre-emption. In the later wajib-ul-arz of 1890, no mention was made of any custom o