JUDGMENT : RICHARDS, J. This appeal arises out of a suit for preemption. There is no dispute as to the existence of custom, The wajib-ul-arz adduced in evidence in support of the custom gives a right first to brothers who are co-sharers; then to co-sharers in the same patti or thok; and then to co-sharers in another patti ox thok. Since the wajib-ul-arz was prepared, partition has taken place, and no new wajib-ul-arz has been prepared. The result of the partition is that the plaintiff pre-emptor is now a co-sharer with the vendor in the same Mahal but in a different patti or thok. The vendee is not a co-sharer with the vendor at all; but he is a proprietor in another Mahal which is in the same village and formed one Mahal with the vendor in which the property is situate prior to partition. Before the partition the plaintiff pre-emptor, the vendor and the defendant vendee were all co-sharers in the same patti or thok. The learned Judge was of opinion that under these circumstances the defendant had still equal rights with the plaintiff on the ground that the partition had no effect and the custom could not change. 2. We think that the learned Judge was wrong. 3. It is quite true that the custom cannot change but a person who is entitled to pre-empt under the custom prior to partition, may lose that right as the result of the partition. In the present case the defendant vendee is no longer a co-sharer either in the same patti or thok, nor in the same Mahal; in fact further he is not a co-sharer or partner with the vendor at all. 4. We have been referred to the case of Daria v. Har Khial,[1909] 6 A.L.J.R., 180. That is a Letters Patent appeal, and it is only necessary for us to point out that the facts were quite different. The zvajib-ul-arz in that case gave a right to co-sharers in the patti or thok and to co-sharers in the village. As the result of the partition pattis or thoks ceased to exist. There were no longer any divisions of the kind. The zvajib-ul-arz in that case gave a right to co-sharers in the patti or thok and to co-sharers in the village. As the result of the partition pattis or thoks ceased to exist. There were no longer any divisions of the kind. According to the judgment of STANLEY, C.J., the Court was of opinion that the plaintiff was unable to prove that he was a co-sharer in the thok or patti, and that therefore he had to fall back upon his claim as a co-sharer in the village, and that inasmuch as the defendant was also a co-sharer in the village, their rights were equal. Upon this ground the decision of Mr. Justice Griffin was set aside. In the present case pattis and thoks still exist, and the plaintiff admittedly is a co-sharer in a patti in the same Mahal as the vendor. 5. We allow the appeal, set aside the decrees of both the courts below, and, as the case was decided on a preliminary point, we remand the case to the court of first instance through the lower appellate court, with directions to re-admit the same upon its original number and to proceed to hear and determine the same according to law.