JUDGMENT : TUDBALL, J. 1. This appeal arises out of a suit for preemption based upon a custom which is alleged to exist in the village. The village, as at present constituted, consists of several separate and distinct mahals. The property in suit is the whole of Khata Khewat No. 2 in mahal and patti Wahid Husain. The vendees are co-sharers in the village but in another mahal. The pre-emptors are co-sharers in the same mahal but in another patti. 2. The court of first instance dismissed the suit holding that custom bad not been established by the evidence produced by the plaintiffs. 3. The lower appellate court has decreed the claim, holding that the evidence adduced is sufficient to establish that custom. 4. The further question arose as to whether assuming that the custom existed, the plaintiffs had a right preferential to that of the vendees to purchase the property. To establish the custom the plaintiffs produced the wajib-ul-arz of the year 1863 together with the dastur dehi of 1889. As the court of first instance has remarked plaintiffs declined to produce any oral evidence to prove the existence of a custom of pre-emption. We may add that there is 110 documentary evidence either, other than that referred to. The wajib-ul-arz of 1863 states in respect to the right of pre-emption that in the village up to that time no co-sharer had ever transferred his property by mortgage but that for the future every proprietor would be entitled to transfer his share in whole or in part, that is, if any proprietor wished to sell or mortgage his estate, then he could transfer it to another proprietor at the price agreed upon. It is doubtful whether a particular word used in this document is ek or sharik. In the one case the record would read “to awal ek hath dusri ke intiqal kar snkta hai”. If it be read as sharik, it will be “to awal sharik hath dusri ke intiqal kar sakta hai.” Between the years 1863 and 1889 the village was partitioned and the mahal which was called mahal gair dayyan was constituted. In the dastur dehi in 1889 of that mahal certain customs were set forth and then the remark was entered that as to the customs other than those entered, reference must be made to the wajib-ul-arz of 1863. In the dastur dehi in 1889 of that mahal certain customs were set forth and then the remark was entered that as to the customs other than those entered, reference must be made to the wajib-ul-arz of 1863. Subsequent to 1889 there were two more partitions, in 1304 and 1310. The first question which arises is whether or not the plaintiff has produced sufficient evidence to establish the custom which he sets forth. The Full Bench ruling in Returaji Dubain v. Pahalwan Bhagat, [1910] 7 A.L.J.R., 1040 no doubt lays down that when a record of the right of pre-emption is found in the wajib-ul-arz it is presumably a reference to custom. The chief reason for this being that it was the duty of the recording officer to record customs and not agreements made between the co-sharers. Applying that principle to the present instance the presumption is greatly weakened when we find that at least in the case of mortgages the wajib-ul-arz clearly records not a custom out an arrangement for the future. There is a clear statement to the effect that in the past there had been no mortgages but that for the future, mortgages should be carried out in a certain manner. It is clear that the officer who recorded this wajib-ul-arz did not restrict himself to customs but that he did, as a matter of fact, record in one instance at least an agreement at which the co-sharers arrived at the time of the settlement. 5. The rest of the language of the clause which refers to pre-emption is also language such as would be used in recording an agreement rather than recording a custom. The plaintiffs must establish the custom which they are setting up. The entry in the wajib-ul-arz which to say the least is of a very doubtful character is without any corroborative evidence. On the other hand we must quote the first court's remarks :—“There were admittedly two instances of transfer in 1906, but the right of pre-emption was not exercised in respect of either of them. Nor is it suggested that that right was ever enforced on any previous occasion.” In the present case we cannot hold that the doubtful entry in the wajib-ul-aiz unsupported by any corroborative evidence is sufficient to establish the alleged custom. Nor is it suggested that that right was ever enforced on any previous occasion.” In the present case we cannot hold that the doubtful entry in the wajib-ul-aiz unsupported by any corroborative evidence is sufficient to establish the alleged custom. In the case of Thakur Anant Singh v. Thakur Daya Singh, [1910] L.R., 37 I.A., 191 their Lordships of the Privy Council remarked as follows:—“It has been pointed out more than once at this Board that there is no class of evidence that is more likely to vary in value according to circumstances than that of wajib-ul-arzes (Muhammad Imam Ali Khan v. Hussein Khan, [1898] L.R., 25 I.A., 161 and 169 and Parbali Kunwar v. Chandrapal Kunwar, [1909] L.R., 39 I.A., 125, S.C., I.L.R., 31 All., 457 and where, as here, from internal evidence it seems probable that the entries recorded connote the views of individuals as to the practice that they would wish to see prevailing rather than the ascertained facts of a well-established custom, the learned Judicial Commissioners properly attached weight to the fact that no evidence at all was forthcoming, of any instance in which the alleged custom had been observed.” 6. In our opinion the above remarks are applicable to the facts of the present case and with considerable force. It is true that in that case the custom in question was one which was put forward to rebut the ordinary presumption that the law of the Mitakshnra prevailed in a matter of inheritance. In the case before us the custom alleged is one put forward in derogation of the ordinary right of a proprietor to sell his property to whomsoever it may please him to sell. The burden of proof was upon the plaintiff to establish by sufficient evidence the alleged custom. The evidence he has produced is in our opinion quite insufficient. As we have not heard the respondents arguments on the other point which arises in the case, we do not think it expedient to express an opinion thereon. 7. The result is that the appeal will be allowed, the decree of the lower court will be set aside, and that of the court of first instance will be restored with costs in this Court and in the court below.