JUDGMENT : RAFIQUE, J.:— This second appeal arises out of a suit brought by Shankar Tewari, the plaintiff respondent, for the recovery of property conveyed by a sale-deed dated the 24th of August 1917 by defendants 5 to 7 to defendants 1 to 4, on the ground of pre-emption. It was stated by the plaintiff in his plaint that the property conveyed by the said sale-deed was of two kinds, namely, Khalsa and arazidari; that there was a custom obtaining in the village of Chapra, where the property sold is situate, under which the co-sharers in the order given in the wajib-ul-arz had a right of pre-emption over a stranger, that the defendants 1 to 4 were strangers, white the plaintiff was a cousin of the vendors and therefore entitled to pre-empt the property. The sale consideration entered in the deed was also challenged. The claim was resisted on various grounds. It was urged on behalf of the defendants vendees that no custom of preemption prevailed in the village of Chapra, that the sale consideration given in the deed was accurate and that in any case the sale of arazidari could not be a fit subject of pre-emption. 2. The court of first instance decreed the claim with regard to both the items of property on the payment of Rs. 2805, holding that the wajib-ul-arz filed on behalf of the plaintiff proved that a custom of pre-emption obtained in the village of Chapra. 3. On appeal by the vendees the learned Judge affirmed the decree of the first court, though on another ground. He held that the terms of the wajib-ul-arz. relied upon by the plaintiff showed a contract and not a custom of pre-emption and as the suit was filed by the plaintiff before the expiry of the settlement in which the wajib-ul-arz relied upon was prepared he had the right of action and should succeed. 4. In second appeal before us the vendees challenge the decree of the lower court on three grounds. They contend that the lower appellate court was not justified in setting up a new case for the plaintiff. The latter had come into court on one and one allegation only, namely, that the custom of pre-emption prevailed in the village of Chapra. He made no mention and did not rely on any contract between the co-sharers of the village of Chapra. 5. The latter had come into court on one and one allegation only, namely, that the custom of pre-emption prevailed in the village of Chapra. He made no mention and did not rely on any contract between the co-sharers of the village of Chapra. 5. If the learned Judge of the lower appellate court was of opinion that the terms of the wajib-ul-arz of the village showed the existence of a contract of pre-emption he should have asked the plaintiff to amend his plaint or at least to give the defendants vendees a chance of meeting a case made out for the plaintiff by the learned Judge. The second objection on behalf of the appellants is that custom or contract, whichever the waqib-ul-arz might be taken to show, does not apply to arazidari. In the village of Chapra the two items of property are distinctly settled and separate papers are prepared in respect of them. There are also separate lambardars. The third objection is that the defendants vendees are also co-sharers in the village and even on the terms of the wajib-ul-arz, if they are the terms of a contract, they have as much right to purchase the properties in suit as the plaintiff. 6. In our opinion this appeal must prevail. The objection on behalf of the appellants that the learned Distriqt Judge should not have allowed the claim of the opposite party on the ground of contract when they had come into court on the allegation of custom is correct. It appears from the papers on the record that the village in which the property in suit is situate was settled with a single proprietor up to 1836. In 1836 the settlement was made with four persons. The reference to pre-emption is made for the first time in the wajib-ul-arz of 1860. It cannot be said that the custom of pre-emption had grown up in 24 years, that is, between 1836 and 1860. The statement in the wajib-ul-arz of 1860 can, therefore, be only taken to mean that the then co-sharers of the village had agreed to pre-emption among themselves. If the learned District Judge was of opinion that the wajib-ul-arz of 1860 and the Zamima Khewat prepared subsequently in 1883 proved the existence of a contract he should have allowed the plaintiff to amend his plaint so as to enable the defendants to meet the case. If the learned District Judge was of opinion that the wajib-ul-arz of 1860 and the Zamima Khewat prepared subsequently in 1883 proved the existence of a contract he should have allowed the plaintiff to amend his plaint so as to enable the defendants to meet the case. The learned Counsel for the respondent has asked us to allow him at this stage to amend the plaint. We do not think that this is a fit case in which we should accede to the request of the learned Counsel for the respondent. The latter having come into court on the allegation of custom and having failed to prove it, his claim ought to have been dismissed. We, therefore, allow the appeal, reverse the decree of the courts below and dismiss the claim of the plaintiff respondent. 7. Costs throughout are allowed to the defendants appellants.