JUDGMENT

1. This appeal arises out of a suit for pre-emption. The plaintiff was, a co-sharer as also were the vendees, hut the plaintiff was own brother of the vendor whilst the vendees were distant connections. The vendees pleaded various defences. They denied the custom; They -denied the plaintiff's preferential right and alleged that the sale was made with the consent and knowledge of the plaintiff The Court of first instance held the custom of pre emption prevailed and that the plaintiff had a preferential right, and it held against the defendants on the issue of the acquiescence. The lower Appellate Court held that the entry in the wajib-ul-arz was insufficient to establish the existence of the custom and, that the weight to be attached to the record was greatly diminished by the fact that a number of other matters were recorded, which could not possibly be customs, in the very same clause.

2. The plaintiff has appealed. We may mention here that the lower Appellate Court has not dealt with the issue of acquiescence on the part of the plaintiff, We think that this issue ought to have been decided and inasmuch as the lower Appellate Court has not decided the issue, we are entitled