Judgement Appeal from a decree of the Chief Court (April 12, 1897) reversing a decree of the Subordinate Judge of Hissar (March 31, 1894). The respondents sued to recover possession of village Manda Khera by right of pre-emption, alleging a sale thereof by Cyril Kirkpatrick, defendant No. 1, to Allah Dia, defendant No. 2. They described themselves as occupancy tenants in Mauza Manda Khera, and alleged that " defendant No. 2, vendee, has no right whatever in the said village. Hence, according to law and the custom obtaining in the Punjab, the plaintiffs right of pre-emption is superior to that of the vendee." The Subordinate Judge of Hissar delivered his judgment on March 31, 1894. He was of opinion that the Punjab Laws Act (XII. of 1878) does not apply to the case of a zemindari village. He also held that plaintiffs had failed to prove a single instance where an occupancy tenant had successfully exercised a right of pre-emption in a case like the present. He further observed that, as the plaintiffs had only obtained their occupancy rights since the 1863-4 settlement, it was obvious Law. Rep. 30 Ind. App. 89 ( 1902- 1903) Rahim-Ud-Din V. Rewal 22 that no such custom could exist in the village. The Chief Court reversed this decree, following their own judgment in another case dated a few days previously, and deciding that as occupancy tenants the respondents had a right of pre-emption. Sir W. Rattigan, K.C., and C. W. Arathoon contended that the Subordinate Judge was right in holding that Act XII. of 1878 did not apply to a zemindari village such as this, which was moreover, as the wajib-ul-arz relating to it, expressly states, the self-acquired property of a single owner, who had absolute power of alienation uncontrolled even by the members of his family. They relied on s. 10, which says that the existence of the right of pre-emption must be presumed or proved. Here there was no proof and no evidence of customary rights of pre-emption applicable to the village, and, considering the history of the village, it was inconceivable that such a custom could exist. As for presumption, that only arises under the terms of the section in favour of "all village communities however constituted. It takes at least two people to make a community, and here the village belonged to a single owner. As for presumption, that only arises under the terms of the section in favour of "all village communities however constituted. It takes at least two people to make a community, and here the village belonged to a single owner. A village community means members of a family or tribe holding the village lands in common by a tenure as customarily recognised in the village. It does not mean the fluctuating body of residents therein, who are or may be totally unconnected with proprietary rights therein. According to the meaning of the Act, a member of a village community could be no one but a landholder. This is the inference to be drawn from Act IV. of 1872 and the Act of 1878 when read together. Sect. 14 of the earlier Act corresponds with s. 12 of the later. Sect. 12 only deals with the order in which rival claimants may be dealt with. It does not confer the right. For village communities, see Maines Village Communities, p. 12; Punjab Civil Code, s. 13, par. 11; Baden Powells Village Communities (ed. 1896), p. 26; Punjab Record, No. 74 of 1897 and No. 21 of 1900. The respondents did not appear. March 25. The judgment of their Lordships was delivered by LORD MACNAGHTEN. This is an appeal ex parte against a decree of the Chief Court of the Punjab pronounced in favour of the respondents, who were plaintiffs in the suit. The respondents are occupancy tenants in the village of Manda Khera, a zemindari village owned by a single proprietor. On the death of the owner in 1892 the village was sold under the authority of a declaration of trust, and sold to a stranger. Thereupon the respondents, taking their stand on Act XII. of 1878, an Act passed for the purpose of amending the Punjab Laws Act, 1872, claimed pre-emption of the whole village. There was no preferential claim. It was not disputed at their Lordships bar that there would be no answer to the claim of the respondents if the provisions of the Act of 1878 apply to the case. It was, however, con-tended on behalf of the purchaser, who was a defendant in the suit and is now represented by the appellants, that the respondents cannot claim the benefit of the Act because, although Manda Khera is a village, no village community is to be found in it. It was, however, con-tended on behalf of the purchaser, who was a defendant in the suit and is now represented by the appellants, that the respondents cannot claim the benefit of the Act because, although Manda Khera is a village, no village community is to be found in it. The argument was mainly founded on s. 10 of the Act of 1878. The provisions with regard to pre-emption begin with s. 9. Sect. 9 declares that " the right of pre-emption is a right of the persons hereinafter mentioned or referred to acquire in the cases hereinafter specified immovable property in preference to all other persons." The section goes on to explain that the right arises in respect of sales and foreclosures. Sect. 12 declares that " if the property to be sold .... is situate within .... a village the right to buy .... belongs, in the absence of a custom to the contrary," to certain classes of persons therein described in succession one after the other. Among them in the sixth place come " the tenants (if any) with rights of occupancy in the property," and, seventhly, " the tenants (if any) with rights of occupancy in the village." Law. Rep. 30 Ind. App. 89 ( 1902- 1903) Rahim-Ud-Din V. Rewal 23 Those two sections—ss. 9 and 12—taken together seem to be complete in themselves and plain enough. But between them are ss. 10 and 11. It is s. 10 which creates, or is supposed to create, the difficulty. It declares that" unless the existence of any custom or contract to the contrary is proved, such right"— that is the right of pre-emption—" shall, whether recorded in the settlement record or not, be presumed— "(a) To exist in all village communities however constituted." Sect. 11 declares that the right "shall not be presumed to exist in any town or city or any sub-division thereof, but may be shewn to exist therein." The argument, as their Lordships understood it, was to this effect. Before the benefit of the provisions of s. 12 can be invoked, the existence of a right of pre-emption must be either presumed or proved. In villages the right is presumed to exist if there be a village community; but if that condition is wanting there must be proof of custom. In the present case there is no evidence of custom at all. In villages the right is presumed to exist if there be a village community; but if that condition is wanting there must be proof of custom. In the present case there is no evidence of custom at all. There can be no village community, because the whole village was in the hands of a single proprietor. Two persons at least are required to make a community, and they must be landowners. The result of this argument would be that the rights of occupancy tenants would be made to depend on the question whether the village belonged to one or more than one landowner—a matter which does not of itself seem to affect or concern the position of the tenant in relation to strangers whose exclusion is aimed at by the law of pre-emption. There is certainly ground for contending that the generality of ss. 9 and 12 is not cut down by ss. 10 and 11. These sections apply a different rule in the case of villages from that which is applicable in the case of towns and cities. And it may well be that they were not intended to do more, though no doubt the introduction of the expression "village communities" where the expression " villages" would suffice does introduce an element of obscurity. It is not, however, necessary to pursue this subject further or to determine the point, because their Lordships agree with the Chief Court in thinking that the expression " village communities " in the Act of 1878 is not used to denote a village community of the typical sort, consisting of members of one family or one clan holding the village lands in common and dividing between them the agricultural lands according to the custom of the village. It seems] rather to be used in a popular sense to denote a body of persons bound together by the tie of residence in one and the same village, amenable to the village customs, and subject to the administrative control of the village officers. There seems to be no reason why a village community should be confined to the landowners in the village. There seems to be no reason why a village community should be confined to the landowners in the village. In their Lordships opinion occupancy tenants are members of a village community within the meaning of the Act, and so are all persons in an inferior position who belong to the village, though they may be unconnected with the land and not entitled to any right of pre-emption under the Act of 1878. This was the view of the learned judges in the Chief Court, and their Lordships see no reason to differ from them. Their Lordships will, therefore, humbly advise His Majesty that the appeal ought to be dismissed.