JUDGMENT : BANERJI, J.:— This appeal arises out of a suit for pre-emption brought by the respondent. Two questions were raised in the lower court and those are the questions which we also have to determine in this appeal. The first is whether the plaintiff refused to purchase the property for the price agreed upon between the vendors and the vendee and the second is what was the consideration for the sale which the plaintiff is bound to pay. Upon the first point the defendant-appellant on whom the burden of proof lay gave no evidence and we think the court below has rightly held that the defendant has failed to prove a refusal on the part of the plaintiff to purchase for the price agreed upon. The second question is the main point to be determined in this appeal. The price set forth in the sale-deed is Its. 25,000. The plaintiff stated in the plaint that the actual price agreed upon and paid by the vendee was Rs. 10,000. The court below has found that Rs. 25,000 was paid. This finding is supported by the evidence and the correctness of it is not impugned on behalf of the plaintiff. The learned Subordinate Judge was however of opinion that under the terms of the wajib-ul-arz the plaintiff pre-emptor was liable to pay only a reasonable price for the property. This the learned Judge held to be Rs. 14,305-4-10 and he accordingly made a decree in favour of the plaintiff conditional upon his paying that amount to the vendee. The general rule is that a pre-emptor is bound to pay the price which the vendee has actually paid for the property. This rule may in some cases be modified by custom or by agreement between co-sharers. In the present instance reference is made to a clause in the wajib-ul-arz which is to the effect that “if a co-sharer being in collusion and concert with a stranger gets an improper and unreasonable price settled for the property through animosity or with the intention of causing disturbance in the village and if there be a dispute as regards the price, the price shall be settled by an arbitrator who shall be nominated by mutual consent. If none of the parties be willing to refer the matter to arbitration the Collector shall have power to appoint an arbitrator on behalf of the Government and to have the price settled.” This clause in the wajib-u-Uarz it is urged enables the court to fix a reasonable price. We are unable to agree with this contention. The clause as it exists is incapable of enforcement. If the parties do not agree to the appointment of an arbitrator, and in this case they did not agree to appoint an arbitrator, the Collector is given the power to appoint an arbitrator on behalf of the Government. The Government has mainfestly no interest in the matter and the Collector has no authority on behalf of Government to appoint an arbitrator. The provision of the wajib-ul-arz is therefore not capable of enforcement. It does not empower the court to fix a reasonable price. Therefore under the terms of the wajib-ul-arz the court could not substitute for the contract entered into between the vendors and the vendee a different contract as regards the consideration for the sale. In the present case as we have already said, it has been found—and found upon good evidence—that the vendee actually paid the full amount of Rs. 25,000 mentioned in the sale-deed as the consideration for the sale. This amount the plaintiff must pay before he can obtain the property by right of pre-emption. The result is that Ave vary the decree of the court below and allowing the appeal in part make a decree in favour of the plaintiff conditional on his paying Rs. 25,000 to the vendee-appellant within three months from this date. In the event of his failing to pay that amount within the time fixed the suit shall stand dismissed with costs in all courts. If the plaintiff pays the amount of consideration mentioned above within the time fixed the parties will pay and receive costs in this court, and in the court below in proportion to faiure and success. The costs of this court will include fees on the higher scale. The objection under section. 561 of the Code of Civil Procedure taken on behalf of the respondents must necessarily fail. We accordingly dismiss it with costs.