JUDGMENT

1. This is a defendant's appeal arising out of a suit for preemption. The main plea taken on behalf of the defendant was that the plaintiff had no preference over him. The Court of first instance dismissed the suit on the 24th July 1920. On appeal the lower Appellate Court was of opinion that under the custom recorded in the wajib-ul-urz the plaintiff had a right of preferences against the defendant-vendee though the latter was a co-sharer in the same thok. The decree of the First Court was accordingly set aside and the suit decreed. A second appeal was preferred to this Court on the 28th July 1921 and one of the grounds raised in the memorandum of appeal was that, inasmuch as the plaintiff-respondent had ceased to be a co-sharer at the time of the lower Appellate Court's decree, his suit should have been dismissed.

2. An affidavit was filed in support of the allegation implied in that ground and time was given to the opposite party to file a counter-affidavit if necessary. No such affidavit was filed.

3. We may therefore, take it that it is the appellant's case that on the 20th April 1921 the share of the plaintiff pre-emptor, on the strength of which he had instituted the s