JUDGMENT : Blair, J. This is a suit for pre-emption based upon custom. The suit was dismissed by the court of first instance, and the decree of that court was affirmed by the appellate court upon the finding that such a custom had not been proved. That court based its conclusions on three grounds, firstly, it held that the wajib-ul-arz framed at the settlement of 1862, contained no evidence of custom but rather of a contract; secondly, that the two decrees in the previous pre-emption cases which had been produced, were no evidence of custom; thirdly that the oral evidence of two witnesses who deposed to the existence of the custom was of no value in face of the plaintiff's admission that there had been transfers to outsiders without any pre-emptive right being claimed. The propriety of these findings is put in issue in this appeal. We have considered the passages relating to pre-emption in the wajib-ul-arz and we find, in accordance with the ordinary principles of interpretation applicable to such documents, that it does prove at all events prima facie the existence of a custom. As a recent authority for this proposition we refer to the case of Ali Nasir Khan v. Manik Chand, [1902] I.L.R., 25 All., 90. On page 95 the Court approved of a judgment of the Full Bench in which these expressions occur. “If the wajib-ul-arz itself did not show or if it was not otherwise proved, that the preemption clause was merely the embodiment of a new contract as to pre-emption, the reasonable and proper construction of such a document would be that the pre-emption clause was merely the recital of a pre-existing custom in force in the village, and in such a case it would be for the defendant in a suit for pre-emption to prove by clear evidence that no such custom had existed in the village, and that the vendor and the plaintiff had not agreed to be bound by that recital.” In this case, therefore, we have a wajib-ul-arz which prima facie raises a presumption of the truth of relevant statements therein made. It is contended that the presumption enacted in section 91 of Act No. XIX of 1873 cannot apply to a document of a date prior to the coming into force of that enactment and in support of this contention an unreported judgment of a single Judge in S.A. No. 742 of 1902, decided on 19th March last, [Since reported, [1904] A.W.N., 117], has been referred to. 2. A careful examination of the prior legislation on the subject entirely dissipates that argument. Referring to section 9 of Regulation VII of 1822, we find that Settlement Officers are directed to form “as accurate a record as possible of all local usages connected with landed tenures” and other matters to which it is unnecessary to refer, and it is further provided “that the information collected on the points shall be so arranged and recorded as to admit of an immediate reference hereafter by the Courts of Judicature.” It is obvious, therefore, that the presence of a wajib-ul-arz was to furnish a Court of Justice with compendious statement of the local usages connected with landed tenures and the entries contained in it are relevant evidence under section 35 of the Evidence Act. Apparently the learned Judge's ruling in the unreported case referred to above, that a wajib-ul-arz prior to the enactment of section 91 of Act No. XIX of 1873, did not raise the presumption which was by that section enacted is not based upon a consideration of section 9 of Regulation VII of 1822. On the contrary, there is a ruling directly to the contrary in the case of Muhammad Hasan v. Munna Lal, [1886] I.L.R., 8 All. 434 in which a Divisional Bench consisting of OLDFIELD and TYRRELL, JJ., held that although this particular wajib-ul-arz was made before Act XIX of 1873 came into force the weight which should attach to its entries both as proof of the contract as well as the custom is very strong, and the observations made by this Court on this subject in the Full Bench case of Isri Singh v. Ganga, [1880] I.L.R., 2 All., 876 are as applicable here as in that case. The wajib-ul-arz is a document of a public character, prepared with all publicity and must be considered as prima facie evidence Of the existence of any custom which it records. The wajib-ul-arz is a document of a public character, prepared with all publicity and must be considered as prima facie evidence Of the existence of any custom which it records. Its record of the existence of a custom of pre-emption is sufficiently strong evidence so as to cast on those denying the custom the burden of proof. In the case before us it is certain that the two decrees are not any evidence whatever against the existence of a custom. It is in our opinion equally certain that the evidence of witnesses who proved dealings with land in which there was no pre-emption claimed, is not evidence of its non-existence, The basis of the conclusion at which the learned Judge of the Court below arrived is this:— a wajib-ul-arz which is evidence of custom, decrees which are certainly not evidence of the non-existence Of custom, evidence of witnesses which are not perse evidence of the non-existence of custom. All the evidence he had before him was the wajib-ul-arz, the presumption of which was unrebutted by any evidence. We must therefore hold that the Court below was wrong in finding that there was no custom. It will be necessary, therefore, the suit having been dismissed on this preliminary point, and we holding that the court below was wrong, that the case should go back for adjudication on the other questions at issue. We decree the appeal, set aside the decrees of the court below and remand the case under section 562 of the Code of Civil Procedure to the court of first instance for trial upon the merits. The appellant will have his costs of this appeal. The other costs will follow the event. A preliminary objection was taken to the hearing of this appeal upon the ground that the vendor defendant was a necessary party to the appeal, and as he had not been served with notice of the appeal, it must be held to have abated. This contention has no force.: It was held in the case of Lok Singh v. Balwant Singh, [1900] A.W.N., 239, following the case of Hira Lal v. Ramjasi, (1883) I.L.R., 6 All, 57, that the vendor being void of interest, is not a necessary party to a suit for pre-emption. We therefore overrule the preliminary objection.