JUDGMENT : Banerji, J. This appeal arises out of a suit for pre-emption brought by the respondents in respect of a sale made in favour of the appellant. The Plaintiff-respondents are co-sharers in the same thok as the vendor. The defendants-vendees are co-sharers in another thok. The plaintiffs claim priority over the defendants-vendees on the ground that according to the custom prevailing in the village a co-sharer in the same thok has a right to pre-empt superior to that of a co-sharer in another thok. The Court of first instance was of opinion that the custom alleged by the plaintiffs had not been established and accordingly dismissed the suit. It however tried the only other issue raised in the case, namely, that relating to the sale price and decided that issue in favour of the defendants. Upon the plaintiff's appeal the lower appellate Court held that the custom relied upon by the plaintiffs had been proved, and that the plaintiffs were entitled to preempt the property. That Court, however, made an order remanding the case to the Court of first instance under section 562 of the Code of Civil Procedure. From this order of remand the present appeal has been brought. The first contention raised on behalf of the appellant is that there is no legal evidence of existence of a custom of the pre-emption as against a co-sharer in the village. 2. The plaintiff relied upon the wajib-ul-arzes of 1862 and 1876. Under both these documents a near co-sharer has a preferential right of pre-emption as against a shareholder in another thok. The language of the wajib-ul-arz of 1876, is slightly different from that of the wajib-ul-arz of 1862, but in my judgment the provisions of both these documents as regards pre-emption are, in substance, the same. In the document of 1862 it is stated that a co-sharer has a right to transfer his share subject to the condition that he must offer it to a near co-sharer, and in case of his refusal, to a sharer in another thok. In the document of 1876 the first category of pre-emptors is near pattidars in the thok of the vendor, and the next class of pre-emptors are pattidars in another thok. It is manifest that the word pattidars does not mean anything else than a co-sharer. In the document of 1876 the first category of pre-emptors is near pattidars in the thok of the vendor, and the next class of pre-emptors are pattidars in another thok. It is manifest that the word pattidars does not mean anything else than a co-sharer. So that a near co-sharer in the thok in which the vendee has his share has a preferential right of pre-emption over a sharer in another thok. 3. I, therefore, agree with the learned Judge that both these wajib-ul-arzes are practically alike. I am unable to accept the contention of the learned counsel for the appellant that the wajib-ul-arz of 1876 contains the record of a contract It was held in the case of Majidan Bibi v. Shaikh Hayatan, [1897] 17 A.W.N., 3, that if the wajib-ul-arz did not itself show or if it was not otherwise proved that the pre-emption clause was merely the embodiment of a new contract as to pre-emption, the reasonable and proper construction would be that the pre-emption clause was merely the recital of the pre-existing custom in force in the village. This ruling has been followed in recent cases. There is nothing in the wajib-ul-arz of 1862 to show that it was the record of a contract. We must, therefore, presume that it was the record of a custom. We have thus at the date of the institution of the suit in 1904, the record of a custom which was in existence for at least 44 years, under which a co-sharer in the same thok, has a superior right of pre-emption as against a co-sharer in another thok. 4. The appellant relies on the wajib-ul-arz of 1833, under which all co-sharers in the village, without any distinction as to thok, are, given the right of pre-emption as against strangers. It may be that in 1833, the village was not divided into thok, and that the only custom which then existed was the custom under which every co-sharer had a right of pre emption as against strangers. It is quite probable that a custom sprang up subsequently to 1833, and became an invariable custom so far back as 1862, when the wajib-ul-arz of that year was prepared by which a co-sharer in the same thok acquired a preferential right of pre-emption. It is quite probable that a custom sprang up subsequently to 1833, and became an invariable custom so far back as 1862, when the wajib-ul-arz of that year was prepared by which a co-sharer in the same thok acquired a preferential right of pre-emption. Certainly at the date of the suit there existed a custom under which the plaintiffs are entitled to pre-empt the property purchased by the appellant. As observed in Kuar Sen v. Mamman, [1895] I.L.R., 17 All., 87 at p. 92. “We cannot in those provinces apply the principle of English Common Law that a custom is not proved if it is shown not to have been immemorial. To apply such a principle * * * * would be to destroy many customary rights of modern growth.” I am, therefore, unable to hold that a custom which would have the force of law has not been proved to exist in the present case. I think that the learned Judge was right in holding that the plaintiffs bad proved the existence of a custom which gave to co-sharers inter se a right of pre-emption. In the present case it 13 an admitted fact that the plaintiffs are co-sharers in the same thok with the vendors. They have therefore, a right to pre-empt the property in suit, and the Court of first instance was wrong in dismissing their claim. 5. I see no reason why the learned Judge ordered a remand of the case, as the Munsif, although he found the first issue against the plaintiffs, had decided the only other issue in the case, namely, the issue as to the sale price. The order of remand was wholly uncalled for. The learned vakil for the plaintiffs states, and the record also shows, that after the remand the Court of first instance has decided that the amount of consideration for the sale is the amount mentioned in the defendants' sale-deed. The learned vakil further admits that his clients are prepared to accept the finding of the Court of first instance on that issue and he undertakes that if any appeal has been preferred from the decree of that Court he will withdraw it. Under these circumstances it is unnecessary to remand the case to the lower appellate Court and we may affirm the decree made by the Court of first instance after remand. Under these circumstances it is unnecessary to remand the case to the lower appellate Court and we may affirm the decree made by the Court of first instance after remand. I would, therefore, allow the appeal to this extent that the order of remand should be set aside and a decree made in favour of the plaintiffs on the condition that they do pay the amount of consideration mentioned in the defendants' sale-deed within two months from this date, otherwise the suit will stand dismissed with costs in all Courts. The parties should abide their own costs of this appeal. The costs in the Court below should be paid by the parties in proportion to failure and success. RICHARDS, J. I confess I have some doubts on the question of law raised in this appeal. The plaintiffs have a right to succeed in the suit on proof of existing custom. The only evidence on the record is the wajib-ul-arz of 1833, a wajib-ul-arz of 1862 and a wajib-ul-arz of 1876. The wajib-ul-arz of 1833 is clearly evidence of a custom then existing that the co-sharers of the village have a right of pre-emption. As there is no other evidence of any custom in 1833, it must be taken that the custom then existing gave no preference inter se to co-sharers of the village. I quite agree in thinking that the wajib-ul-arzes of 1862 and 1876 are practically identical and do give preferential right to co-sharers in the thoke. It is admitted here that the plaintiffs cannot claim as on foot of a contract; as the wajib-ul-arz of the settlement of 1876 has admittedly come to an end. If the entry of the wajib-ul-arz of 1876 were merely a record of contract it came to an end with the settlement. It must be borne in mind that the onus of proving custom lay on the plaintiffs. For the reasons given by my learned brother I am quite satisfied that if the only evidence was the evidence of the wajib-ul-arzes of 1862 and 1876, the custom alleged by the plaintiffs would have been proved. It must be borne in mind that the onus of proving custom lay on the plaintiffs. For the reasons given by my learned brother I am quite satisfied that if the only evidence was the evidence of the wajib-ul-arzes of 1862 and 1876, the custom alleged by the plaintiffs would have been proved. There is, however, also on the record the wajib-ul-arz of 1833, and I think that this entry clearly shows that the custom alleged by the plaintiffs did not exist in 1833, and accordingly the custom of 1833 must have come to an end, and a new custom must have been established. The doubt that I have felt is whether or not it can be said that the plaintiffs have discharged the onus which admittedly lay on them and proved a new custom. I, however, do not feel justified in differing from the very clear judgment which has just been delivered. On all other questions raised I entirely agree with my learned colleague. The appeal is decreed and the order of the Court below is set aside and the claim of the plaintiffs is decreed subject to the condition that they do pay the price mentioned in the sale-deed of the defendants-appellants within two months from this date, otherwise the suit will stand dismissed with costs in all Courts. In the event of the price being paid the parties will pay and receive costs in the Courts below in proportion to failure and success. The parties will bear their own costs in this Court.