JUDGMENT

Sulaiman, Ag. C.J.

1. The facts are set forth in the order of reference. The main question to be decided is whether when an existing mahal contains portions of earlier mahals the wajibularzes of some of which contain entries recording a right of pre-emption and of the others do not, a right can be presumed to exist in respect of the whole of the existing mahal or in respect of only that portion of it which has come out of the original mahals containing such a record or whether a right has entirely ceased to exist.

2. Unfortunately there is no section in the Act expressly referring to the case of union of mahals. The answer to the question referred has to be given on an examination of the language of the sections as they stand.

3. Section 5 provides that a right of pre-emption shall be deemed to exist only in mahals in respect of which any wajibularz prepared prior to the Act records a custom, contract or declaration whatever its extent or in whatever form it may be expressed. Sub-Clause 6 provides that where such a right is recorded in respect of any village or mahal, and such village 6r mahal has been partitioned, a right shall be deemed to exist in all the portions into which such village or mahal has been divided; It seems to me that the object of Section 5 is to lay down a rule to determine whether a right of pre-emption exists, in an existing mahal or village. Once such a right is presumed to exist the question as to its nature and extent is not to be determined by Section 5 at all but we have to look to other sections like Sections 11 and 12 for that purpose, which lay down the statutory right of pre-emption.

4. There can be no doubt that the words mahals or villages in Sub-clause 1 refer to the existing mahals or villages in which the right of pre-emption is to be presumed. Had the expression been mahals or villages of which any prior wajibularz had been prepared, I would have been constrained to hold that without producing the wajibularz of a whole village or mahal out of which the existing mahal or village has come the plaintiff cannot establish the existence of a right of pre-emption. The expression used by the legislature is, however, much wider in scope and is not necessarily restricted to wajibularzes prepared for the whole of the existing mahals or villages. This view is further strengthened by the expression "whatever its extent and in whatever form it may be expressed" which undoubtedly implies that even if the right entered is limited in its scope and applies either to a limited body of cosharers or to a limited area a right in the whole mahal or village is to be deemed to exist.

5. I cannot therefore accept the contention of the learned advocate for the respondents that if in the existing mahal in the village there is any area which has came out of an earlier mahal in which such a right was never recorded the whole right is extinguished and a claim for pre-emption cannot be maintained as regards the sale of any portion of this new mahal.

6. The learned Subordinate Judge has conceded that the right continues at least as regards that portion of the new mahal Zard which has come out of mahal Bibi Begum and Niazullah Khan the wajibularzes of which did contain the record of a right of pre-emption in 1282 Fasli. But he is of opinion that right cannot be extended to he other area in mahal Zard. It seems to me that to confine the right of preemption to a specified area in a mahal is contrary to the intention of the legislature as is to be gathered from the provisions of Sections 11 and 12. If a right of pre-emption exists in a specified area of mahal Zard it must be held that a right of pre-emption exists in that mahal. Section 11 provides that where any proprietary interest in land forming part of any mahal or village, in which a right of pre-emption exists, is sold a right of pre-emption shall accrue. There is no doubt that in the present case a proprietary interest in land forming part of mahal Zard has been sol