JUDGMENT

Hamilton, J - This is an appeal against a decision of the District Judge of Unao who granted a decree for pre-emption and set aside a decision of the original Court dismissing a suit for pre-emption. The plaintiff sued for pre-emption of a grove which as described in the plaint was situate in mohal Mohan Shah, qasba Safipur khas in which mohal the plaintiff was a co-sharer but the defendant was not. It was also stated that revenue was paid. The trial Court held that as the land was described as being in qasba Safipur Khas, it was in a town and there was therefore no presumption of the existence of the right of preemption. The lower Appellate Court after allowing the production of additional evidence found that this grove was situate outside the inhabitated area and was not within the ambit of the town of Safipur proper and was consequently subject to the right of pre-emption.

2. There is a wajib-ul-arz of mouza Safipur to the effect that sales of shares by co-sharers are subject to pre-emption. If it applies to this land there is no question of whether a presumption arises or not for the wajib-ul-arz is sufficient evidence of the custom. In connexion with this wajib-ul-arz it was held in the year 1866 by the District Judge of Lucknow in whose jurisdiction Unao, where this land is situate, also lay, that this custom of pre-emption did not extend to groves, houses and the like. The case went up in appeal to the Judicial Commissioner who rejected the appeal finding that pre-emption extended to shares of co-sharers in the rural area but not to groves in the town area. It is not clear, consequently, whether he based his decision on the fact that the land was a grove and not a share rather than that it was in the town area and not in the rural area. That was a different grove, and if the decision was based on the situation of that particular grove, the only bearing that it would have on the present case is that this grove is not far from that one. It has been held in Janki Pershad v. Saheb-un-nisa (1904) 7 OC 74 that if a village area is incorporated in a town, it does not become a town within the meaning of Section 8, Oudh Laws Act, so that the right of pre-emption shall not be presumed. In this case the land is shown to be in a mohal and it pays revenue, so even if it eventually lay within the boundaries of the town there would be a presumption independent of the wajib-ul-arz, but as I have stated in the present case, we have the wajib-ul-arz of Safipur mouza, and as this land is in a mohal and pays land revenue it can be presumed that this land is in a mohal of mouza Safipur. I have not myself come across any case where there was a "mouza" bearing a certain name and a qasba bearing the same name which formed two different entities so that one can say that a certain area belonged at the time of the wajib-ul-arz to the mouza but a certain area consisting of the qasba was different. It has not been shown that when the wajib-ul-arz was prepared mouza Safipur was a different entity from qasba Safipur or that in fact any qasba Safipur existed at all.

3. It has been held in Kanhaya Lal v. Hamid Ali (1930) 17 AIR Oudh 235 that a wajib-ul-arz was as effective in a town as in a village although it was argued that the wajib-ul-arz had no effect because that area known as Pihani was a town. It would appear from this argument and the finding that there too the wajib-ul-arz was of village Pihani but was held to apply to Pihani town. In Sheodat Prasad v. Suraj Bali (1915) 2 AIR Oudh 220 it was held that Kundri though included within the Municipal limits of Lucknow was not a mohalla of the city but a village as the papers prepared for this area at the time of the settlement were prepared as though it were a village and not a portion of the city. In my opinion therefore the wajib-ul-arz does apply to the grove in question.

4. It has further been argued that the District Judge's decision of 1886 and that of the Judicial Commissioner in 18