JUDGMENT

Sulaiman, J. - Second Appeals Nos. 91 and 92 of 1923 arise out of two suits for pre-emption. The only question raised in these appeals is whether there is a custom of pre-emption with regard to sales and usufructuary mortgages in the two villages, Salempur and Chainpur in which the shares sold are situated.

2. Both the Courts below have held that the custom has not been established. The plaintiff relies on the entries of the wajib-ul-arzes of the years 1833 and 1860, but the Courts below, having regard to the previous history of the village, have concluded that inasmuch as the villages were waste till about the year 1220 Fasli when they were settled either with only one man or two and that since that time the heirs and legal representatives of these persons alone have remained in possession there could be no occasion for its growth. If the matter had stood at that we would have had some hesitation in upholding the finding of the Courts below.

3. It appears, however, that at the last settlement of 1885 the word "nadarad" (nil) was noted against paragraph 4 of the wajib-ul-arz relating to the custom of preemption. This was not all. After reciting a number of other practices and