JUDGMENT : STANLEY, C.J.:— This appeal arises out of a suit for possession The plaintiff claims a right of pre-emption said to exist by custom and as evidence of the custom relies upon the provision's contained in the wajib-ul-arzes of the years 1860 and 1871. The defendant resisted the claim on the ground that no custom of pre-emption exists in the village and they rely upon the fact that the latest wajib-ul-arz of the village is silent on the subject and also upon a rubkar signed by Mr. Elliott, the Settlement Officer, in 1836, which purports to contain an abstract of the agreement of the co-sharers of the village, the final clause of which (which is the only clause in it dealing with transfers) contains the provisions that every co-sharer has the right to transfer his property. 2. The Court of first instance decreed the plaintiff's claim on payment of a sum of lis. 2,800. On appeal the learned Subordinate Judge reversed this decision and dismissed the plaintiff's claim holding that there was no satisfactory proof that the custom of pre-emption now exists. 3. The custom as recorded in the wajib-ul-arzes of 1800 and 1871 is in these tennis: “If any sharer wish to sell his property, he shall first offer it to his own brother, then to his near relative, and then to the other sharers for a proper amount of consideration.” If the right of pre-emption recorded in these wajib-ul-arzes was created by contract and not by custom the right terminated on the expiration of the settlement of 1871 and no new contract is recorded in the latest settlement. Therefore the plaintiff-appellant cannot succeed in this appeal unless he can prove that the right which he claims existed by custom and that, that custom has not fallen into desuetude. The wajib-ul-arzes of 1860 and 1871 afford good evidence of a right existing by custom but then the earlier record of 1836 proves clearly that no such custom existed in that year. Therefore, if such a custom sprang up, it must have done so between 1836 and 1860. Good evidence was given that the right claimed has never been exercised. The wajib-ul-arzes of 1860 and 1871 afford good evidence of a right existing by custom but then the earlier record of 1836 proves clearly that no such custom existed in that year. Therefore, if such a custom sprang up, it must have done so between 1836 and 1860. Good evidence was given that the right claimed has never been exercised. A witness who was patwari of the village from the year 1862 onwards did not know of a single case of pre-emption, and evidence was given of a number of sales to strangers in which no claim to pre-empt was put forward. The village, we may point out, is a village of Rajputs, and it is improbable that Rajputs would adopt a custom which was introduced by Muhammadans and which did not originally prevail among them. In view of the fact that no such custom existed in 1836, that the latest wajib-ul-arz is silent on the subject and that not a single instance of the enforcement of the right has been proved by the plaintiff-appellant, we think that the lower appellate Court was justified in holding that the custom had not been satisfactorily proved. 4. It lay upon the plaintiff-appellant to prove his case and he has failed to do so. If a custom of this kind could and did in this case spring up in the short interval of time between 1836 and 1860, that is, a period of 24 years and did exist at the date of this waijb-ul-arz of 1871, it may have fallen into desuetude in the interval between the date of that waijb-ul-arz and the present time. We cannot say that the lower appellate Court was wrong in the conclusion at which it arrived, and we therefore dismiss the appeal with costs, including fees in this Court on the higher scale.