- (1.) THIS appeal comes from Shahpura and arises out of a suit for pre-emption. The plaintiff alleged that certain house property near Mohalla Kotharian the town of Shahpura belonged to Mangilal defendant No, 1 who sold it to Motilal defendant No. 2 for a sum of Rs. 225/-, as per sale deed Asoj Sudi 13, Samvat 2000 corresponding to nth October 1943. THIS property is adjacent to the plaintiff's residential house on the north. The plaintiff in accordance with the custom which prevailed in Shahpura was entitled to preempt the property but the defendant No. 1 without his knowledge sold the suit property to defendant No. 2 immediately with a notice to transfer the property to the plaintiff but the defendant No. 2 informed him that he had already transferred it to Kesarbai, Bhanwarlal and Ganga Bishan defendants No. 3, 4 and 5.
(2.) BHURALAL, Mathuralal and Sugan Chand defendants 6 to 8 also brought a suit for the pre-emption of the same property on account of the same transaction. Both the suits were consolidated and the last named three persons were impleaded in the present suit as defendant No. 6, 7 and 8. The defendants No. 1 to 5 pleaded inter alia that there was neither any custom, nor any law of preemption according to which the plaintiff was entitled to pre-empt the property. The learned Civil Judge Shahpura held that it was not proved that there was any law or custom of preemption among the Hindus in Shahpura and consequently dismissed both the suits. The plaintiff Indermal of the present suit went in appeal to the Court of the District Judge Shahpura but was unsuccessful. He filed the present appeal against the Judgment and decree of the first Appellate Court before the former Rajasthan High Court and before the appeal could be disposed of this High Court came into being and replaced the High Courts of the different Covenanting State. During the appeal Mangilal respondent died and in his place Mohanlal, Madanlal and Sohanlal who are his sons have been substituted. I have heard the learned counsel for both the parties. The learned counsel for the appellant has argued that in the first place no clear issue was framed on the point whether the custom of pre-emption among the Hindus prevailed in Shahpura and therefore the attention of the parties was not focused on this question. Secondly the evidence as it was quite sufficient to prove the custom of Shahpura. To the first objection of the learned counsel for the applicant, the learned counsel for the respondent replies that an issue was framed on the question of custom and if, according to the plaintiff, the issue was not properly framed, he should have made an objection in the first court. He however, did not take any such objection and went to trial on the issue as framed and produced his evidence. After the case was decided by the first court, he did not take any objection in his grounds of appeal on this point in the first appellate court. Even in the ground of appeal of this court, he has not taken any of such objection. On giving my careful consideration to the argument on this point, I am of opinion that it is too late in the day for the appellant to raise this point. If he was not satisfied with the issue as framed, it was for him to move the first court to amend the issue. He did not do so and produced his evidence to prove that custom of pre-emption obtained among the Hindus of Shahpura. When the suit was decided against him he did not take any objection on this point before the lower appellate court. Even in his grounds of appeal before this court, such an objection is conspicuous by its absence. From the evidence produced by the plaintiff it is clear that he fully understood that one of the things he had to prove was whether there was a custom of pre-emption among the Hindus of Shahpura. It cannot therefore be said that the plain-tiff was misled by the absence of the separate issue on the point whether the custom of pre-emption obtained among the Hindus of Shahpura. The issue framed by the first court was. . . . . "whether the plaintiff was entitled to pre-empt the property by custom and whether he had preferential right of pre-emption against the defendants No, 6 to 8. 'j It is true that this issue is not simple and could have been conveniently split up into two or three simple issues but it can not be said that it could not give notice to the parties that one of the things which had to be proved was whether custom of pre-emption obtained in Shahpura. Moreover as I have said above the plaintiff did produce the evidence on the point whether custom of pre-emption prevailed in Shahpura. He has therefore not been precluded by producing evidence on this point by the composite nature of the issue. The first objection therefore fails. Coming to the second argument, the learned counsel for the appellant himself felt diffident about the sufficiency of evidence on the point of the alleged custom of the pre-emp-tion. He put the main emphasis on his first argument which has been disposed of already. He pointed out that there was judgment of the Sardar Diwani Adalat Shahpura in suit No. 178 of 1943 Seth Umrav Mal and others vs. Jagannath and others dated 23rd April 1944 by which a suit for preemption was decreed. He also pointed out that in suit No. 49 of 1947 a reference was made by the Civil Judge Shahpura to Mahkma Khas that a suit for pre-emption had been filed and whether it should be entertained or not. The Mahkma Khas returned this reference after the endorsement "permitted. " From this it was argued that because a suit for pre-emption was permitted to be filed, it is proof of the fact that custom of pre-emption was recognised in Shahpura. It has further been argued that in the Limitation Act and Court Fees Act obtaining in Shahpura, provision has been made for pre-emption suits, which shows that custom of pre-emption was recognised in Shahpura. I have considered the arguments of the learned counsel. It can not be gainsaid that pre-emption is not recognised by Hindu Law. Mohammadan Law certainly recognises it, but by that Law it is only the Mohammedans who can claim this right. Hindus can claim this right only if there is a statutory law of preemption or there is a custom in a particular place, which recognises this right among the Hindus. When such a custom is proved Mohammedan Law of pre-emption will govern the Hindus also, unless contrary be shown. In certain places such as Bihar and Gujrat the custom of pre-emption is recognised as prevailing among Hindus and the courts will take judicial notice of it. It is not necessary for the plaintiff to prove such custom in such parts. But in districts where the existence of this custom among non-Muslims has not been judicially noticed, it must be proved by the person who asserts it (Vide Willson's Mohammadan Law 1921 Edition page 476 section 351 ). As the existence of the custom of pre-emption has not been judicially noticed in Shahpura, the plaintiff who asserted the custom should have proved it by clear, cogent and sufficient evidence. Both the lower courts have held that no such custom was proved. Apparently it is a question of fact and is binding upon me as a court of Second Appeal. It has however been urged that in as much as the lower courts have mis-construed the judgment in suit No. 178 of 1943, the order of the Mahkma Khas on the reference made by the Civil Judge Shahpura in 1937 and the provisions of Limitation and Court Fees Acts obtaining in Shahpura, the finding of the fact of the lower court is vitiated. The judgment in suit No. 178 of 1943 is a recent judgment and is no proof that the custom obtaining in Shahpura about pre-emption is ancient. A solitary instance of recent date can not furnish sufficient evidence of custom. The learned lower courts after a very careful consideration have come to the conclusion that the said judgment does not satisfactorily prove custom of pre-emption. The order of Mahkma Khas on the reference of 1937 is no evidence of custom. It is not a judicial decision. The very fact that the Civil Judge felt doubt even in entertaining a plaint for pre-emption shows that there was no well recognised custom of pre-emption among the Hindus of Shahpura. As regards the argument founded on the existence of the provisions for suits for preemption in Limitation and Court Fees Acts of Shahpura, it is neither here nor there. It cannot be denied that Muslims of Shahpura must ordinarily be governed by Mohammedan Law and consequently law of pre-emption applies to them. If a particular section residing in a certain state has a right to bring certain class of suits, provision has to be made in Limitation and Court Fees Acts for such suits. It does not mean that the existence of such a provision proves that all the citizens of the particular state have a right to bring such suits. Indian Limitation and Court Fees Acts also provide for pre-emption suits but it does not mean that law of pre-emption applies to all the citizens of India. I have no reason to interfere with the finding of the fact arrived at by the lower courts after careful consideration in this respect. The appeal is dismissed with costs to the contesting respondents. . ;