JUDGMENT

1. This is a defendant's appeal arising out of a suit for pre-emption. Both the Courts below have decreed the suit. The plaintiff produced a copy of the wajib-ul-arz of the year 1880, which recited that there was a custom of pre-emption and also gave details of the custom. The defendants, however, produced a copy of the dastur dehi of the year 1813 and also produced the patwari to show that there is no entry of any such custom in the wajib-ul-arz of the resent Settlement of 1313 Fasli. There is no other evidence in proof of the custom of pre-emption. There are, however, a few instances of sales to strangers, bat it is not clearly shown whether those sales look place with the consent of the co-sharers or not. The learned District Judge thought that in the dastur dehi of 1843 there was no reference to the right of pre-emption at all, and relying on the case of Harnand v. Kalloo 3 IC 2 : 6 A.L.J. 779 : 31 A. 533 he was of opinion that the presumption that the entry in wajib-ul-arz of 1880 was a record of custom had not been rebutted and that the custom was proved. In our opinion the learned District Judge was clearly in error. It is not only that in the dastur dehi of 1843 the