JUDGMENT : RICHARDS, J.:— This was a suit by the plaintiff for pre-emption. The case was heard by the Munsif. He framed issues in the case, decided them and gave a decree to the plaintiff. Amongst other issues that were framed was the issue whether or not the custom of pre-emption prevailed. It lay on the plaintiff to prove this issue, and he did so by producing the wajib-ul-arz of 1860. The Munsif finds that the right of pre-emption does exist and that it is based upon a custom, and he relies upon the wajib-ul-arz. As the learned District Judge takes no exception to the finding of the Munsif in so far as he finds that the custom once existed, I take it that the right is one based upon custom and not upon contract. The distinction is important, because if the right were based upon contract, it would come to an end with the settlement of 1860. The custom having been proved to have existed it lay on the defendants to show that it had come to an end. The mere fact that on two or three occasions stangers were permitted to purchase without objection was no evidence that the custom that had existed had come to an end, see Ram Sarup v. Sital Prasad, [1904] 24 A.W.N., p. 128; 1 A.L.J.R., 278.. The appeal is allowed, the decree of the lower appellate Court is set aside and the case is remanded to that Court for disposal on the merits. The appellant will have his costs of this appeal. Other costs will abide the result.