JUDGMENT : BANERJI, J. 1. In this suit which is one for pre-emption, two points have been raised on behalf of the plaintiff. He claims to be entitled under the provisions of Muhammadan law. He also claims under some custom not specified in his plaint. Upon the question of the Muhammadan law the court of first instance dismissed his claim. The court of first appeal has found in favour of the plaintiff. That court having disposed of the case upon the question of his right under the Muhammadan law, did not proceed to try the issue whether there was or was not any custom other than that of Muhammadan law of which the plaintiff could claim benefit. As to the decision of the court upon the question of Muhammadan law, we find ourselves driven to the conclusion that no right under that law has been acquired by the plaintiff. We cannot find, as the Judge has done, that for the plaintiff to say “I am pre-emptor, and my right extends to the land” constitutes a talab-i-mawasibat within the meaning of the Muhammadan law. He declares a right, but neither by express words nor by implication does he claim to exercise that right. It is needless to go into the authorities, because it is abundantly manifest that such claim must be found in the words which constitute the talab-i-mawasibat. either in express terms or by implication. The words used in the present case do not, in our opinion, constitute either an express claim or a claim by implication. There is a concurrence of authority upon the subject. “It is immaterial” according to the Hedaya, “in what words the claim is preferred, it being sufficient that they imply a claim,” and instances are given in that book which imply such a claim. But we have nothing before us upon which it is possible to say that such a claim has been made or can be inferred. Mr. Justice Amir Ali in his work upon Muhammadan law, Vol. 2, p. 597, following therein the last authority says, “if a pre-emptor were to say to the purchaser, ‘I am thy shafi, or pre-emptor,’ it would be void.” The reason of this is clear that a mere expression or declaration of his right does not of itself go to show that he wishes to enforce that right. 2. 2, p. 597, following therein the last authority says, “if a pre-emptor were to say to the purchaser, ‘I am thy shafi, or pre-emptor,’ it would be void.” The reason of this is clear that a mere expression or declaration of his right does not of itself go to show that he wishes to enforce that right. 2. We find ourselves constrained to overrule the court of first appeal upon this question and to hold that the plaintiff has not proved the first demand necessary under the Muhammadan law. But there still remains undisposed of by that court the claim based upon custom. As the court below decided the case solely upon the point whether the demand required by the Muhammadan law had been made, we remand this case to that court under section 562 of the Code of Civil Procedure for trial upon the merits.