JUDGMENT : STANLEY, J. The suit which has given rise to this Letters Patent Appeal is a suit for pre-emption of six villages. The court of first instance decreed the plaintiff's claim. On appeal, however the lower appellate court found that the custom of pre-emption had not been proved save in respect of one village, and accordingly modified the decree of the court below, giving a right of pre-emption in respect of one village only and dismissing the claim as regards the other five villages. Against this decree an appeal was preferred and heard by a learned judge of this. Court, who came to the conclusion that the appeal was without force and accordingly dismissed it. Hence the present Letters Patent Appeal. 2. The subject-matter of the appeal then is the right of pre-emption of five villages. These are Bankati, Ahrauli Buzurg, Maniya, Ahrauli Khurd Mahal Mustakil and Ahrauli Khurd Mahal Ihta-mali. In support of the plaintiff's case a wajib-ul-arz of the year 1833 was relied upon as also a wajib-ul-arz of 1860 as establishing a custom of pre-emption in the case of the first two villages. In regard to the three other villages the plaintiffs relied solely upon a wajib-ul-arz of 1833. It appeared that the. wajib-ul-arz of 1860 was silent as to the existence of any custom of pre-emption as regards those villages. 3. It is to be noticed that the villages in dispute are situate in the Gorakhpur district, so that the rules which were passed by the Board of revenue on the 7th of September, 1888, applied to them. According to these rules the Settlement Officer, is directed only to record a custom when the proprietors expressly demand that it be noted and proved conclusively that the custom exists. Having regard to these rules it is obvious that the case would be a rare one in which all the proprietors would come before the Settlement Officer, claim that a custom should be recorded and go to the trouble of satisfactorily proving that such custom existed. It has been held by this Court that the absence of any reference in a wajib-ul-arz, prepared subsequent to the passing of the rule to which we have referred, is not proof of the desuetude of a custom which previously existed, [Sadhu Saha v. Raja Ravi, [1893] I.L.R., 16 All., 40, F.B.—ED.]. 4. It has been held by this Court that the absence of any reference in a wajib-ul-arz, prepared subsequent to the passing of the rule to which we have referred, is not proof of the desuetude of a custom which previously existed, [Sadhu Saha v. Raja Ravi, [1893] I.L.R., 16 All., 40, F.B.—ED.]. 4. In the present case we shall first deal with the evidence afforded, by the wajib-ul-arz of the two villages—Bankati and Ahrauli Buzurg. The provision as regards pre-emption in the wajib-ul-arz of 1833 of village Bankati runs as follows:— ”If anyone amongst us ‘wish to transfer the whole or part of his share, he must first inform all the others, If they can take for the price fixed, well and good, otherwise they may sell or mortgage to any one they like from whom they can get the proper price.” In the case of Ahrauli Buzurg the wajib-ul-arz is in identically the same terms except that instead of the word transfer’ the words ‘mortgage or sell’ are used. Now it has been held by a Full Bench of this Court in the case of Majidan Bibi v. Sheikh Hayatan,[1897] A.W.N., 3, that if a wajib-ul-arz clearly shows that a clause as to pre-emption embodies a new contract as to pre-emption entered into by the co-sharers at the time the wajib-ul-arz was prepared, it would be necessary for the plain-tiff claiming pre-emption to prove that he, or some one through whom he claims, was an assenting party to the contract, but that if the wajib-ul-arz itself did not show or otherwise prove that the pre-emption clause was merely the embodiment of a new contract as to pre-emption the reasonable and proper construction to place upon such a document would be that the pre-emption clause was merely the recital of a pre-emptive custom in force in the village, and in such a case it would be for the defendant in a suit for preemption to prove by clear evidence that no such custom existed and that the vendor and the plaintiffs had not agreed to be bound by the recital of it. Now it appears to us that in the code before us the language of the wajib-ul-arz of 1833 is evidence of a custom and not of a contract. Now it appears to us that in the code before us the language of the wajib-ul-arz of 1833 is evidence of a custom and not of a contract. If there is any doubt upon the construction of the document as this, the rule laid down by the Full Bench would entitle us to hold that the provision as to pre-emption was the embodiment of a custom of pre-emption existing in the village. In the case of the settlement of 1860, of village Bankati, it is stated that 1¼ bighas of the village has been mortgaged, and then the language of the wajib-ul-arz runs as follows:— “In future we, the co-sharers, have power to transfer our respective shares, or lands, but on this condition that whoever sells, mortgages or grants lease of a share, he shall ask all the co-sharers to buy it. If none of them buys or takes a mortgage or lease, then the vendor has power to transfer it to whomsoever he likes.” In the case of Ahrauli Buzurg the language of the wajib-ul-arz of 1860 is in practically the same terms. The words “in future” have been relied upon as showing that the arrangement which is set forth in this wajib-ul-arz was in the nature of a contract, and was not intended to record a pre-existing custom. This view has found favour with the learned Judge of this Court who dismissed the appeal before him. We are unable to agree with him as to this. It appears to us that it was intended in the wajib-ul-arz of 1860 to record the custom as it existed and as it was mentioned in the previous settlement of 1833, but the parties were desipus of having the fact noted that 1¼ bighas had already been mortgaged; and therefore it was not unnatural that the words ‘in future should have been introduced, Even if this be not the reason for introducing the words, we are at a loss to understand how these words can be treated as evidence of contract rather than of custom. The same observations apply to the case of the village Ahrauli Buzurg. 5. We now come to deal with the three other villages. As regards the village Maniya, the wajib-ul-arz of 1833 alone has been adduced in evidence. The same observations apply to the case of the village Ahrauli Buzurg. 5. We now come to deal with the three other villages. As regards the village Maniya, the wajib-ul-arz of 1833 alone has been adduced in evidence. The provision in it as to pre-emption runs as follows:— ’If any of us wishes to transfer the whole or part he must first inform his co-sharers in the village, If they take it for the price fixed, well and good, if not, he may sell or mortgage to anyone from whom he gets the price he wishes.” In the wajib-ul-arz relating to the other two villages, the language is in substance the same… The learned Judge of this Court evidently had not his attention directed to the precise language of the wajib-ul-arz, for we find him say that “the only records of the village custom put forward are those prepared in 1833 and 1860,” and that “that prepared in 1833, runs as follows:— In this village no share of any co-sharer is under mortgage or farm with any one, nor sold to any one, In future if any co-sharer wishes to sell, etc.” This is not the language of the wajib-ul-arz. We have already set forth its terms accurately. Evidently the attention of the learned Judge was directed to a wajib-ul-arz of a different village, or it may be that he, had in his mind the wajib-ul-arz of 1860 to which we have referred. Another matter to which the learned Judge calls attention and which seems to have impressed him is the fact that none of the parties produced the wajib-ul-arz prepared at the recent settlements. He seems to have over-looked the fact that in those settlements, as pointed out by the learned District Judge, no mention whatever is made of the custom. This, as we have pointed out, can have no significance,’ having regard to the rules of the Board of Revenue referred to above. The wajib-ul-arz of 1833 and that of 1860 furnish therefore good prima facie evidence of the existence of the alleged custom, and there has been no evidence whatever adduced to rebut the evidence so supplied. This, as we have pointed out, can have no significance,’ having regard to the rules of the Board of Revenue referred to above. The wajib-ul-arz of 1833 and that of 1860 furnish therefore good prima facie evidence of the existence of the alleged custom, and there has been no evidence whatever adduced to rebut the evidence so supplied. The mere fact that evidence was given that sales and mortgages had taken place in the villages as to which no pre-emptive claim had been made, does not negative the existence of the custom, Under these circumstances we must hold that the plaintiffs adduced, evidence which in the absence of rebutting evidence was sufficient to establish a right of pre-emption based on custom. There was no rebutting evidence, and therefore the decision of the court of first instance ought to have been affirmed. We therefore allow this appeal, set aside the decrees of this Court and of the lower appellate court, and restore the decree of the court of first instance with costs in all courts. We extend the time for payment of the purchase money to the 2nd of January, 1905.