JUDGMENT Sulaiman C. J. and Pullan, J. - The Appellant before us purchased a half share in a house situated in muhalla Baksaryan in the town of Shahjahanpur. The Plaintiff who owns an adjoining house according to the finding of the Courts below brought a suit for pre-emption alleging that a custom of pre-emption has existed from of old regarding the houses and lands in the city of Shahjahanpur. The Plaintiff made the demands required under the Mahomedan Law but the suit has been contested on the ground that the custom of pre-emption does not exist as far as the Hindus are concerned in the town of Shahjahanpur and if it ever did exist it has now been abrogated by desuetude. The Courts below have decreed the claim but in this appeal it has been argued that the decision is wrong and that the custom, although it was established by certain judgments from the years 1860 to 1883, has since then fallen into disuse and reliance is placed upon three decisions of the Munsif's Court of Shahjahanpur in which the custom has not been upheld. We have no doubt that the judgments of 1862 in the case of Mst. Ramni v. Bhagwant which came before the District Judge of Shahjahanpur and also before the Sadar Dewani Adalat of the North Western Provinces in petition No. 925 of 1862 established the fact that there was a local custom in the city of Shahjahanpur by which Hindus could claim pre-emption of the houses. It was also held by the Courts that they were subject to the Mahomedan Law of pre-emption in that they were required to make the demands necessary under that law. In 1866 the District Judge of Shahjahanpur again held that there was a custom of preemption in the city of Shahjahanpur based on Mahomedan Law and usage among Hindus, in the case of one Balgovind v. Darbari Lal. In a case tried in 1883 by the Munsif, a Hindu vendee pleaded that the Mahomedan custom of preemption could not apply against him, but it was found that the custom did hold good even between Mahomedans and Hindus in the muhalla Baksaryan which is the very muhalla in which the property now in suit is situated. In a case tried in 1883 by the Munsif, a Hindu vendee pleaded that the Mahomedan custom of preemption could not apply against him, but it was found that the custom did hold good even between Mahomedans and Hindus in the muhalla Baksaryan which is the very muhalla in which the property now in suit is situated. Thus we agree with the Courts below that this custom prevailed up to the year 1883 at least, and we have now to consider whether it has since been abrogated. We have not been shown any instance in which the custom could have been but has not been pleaded, from which it could be inferred that the custom has fallen into abeyance, but we have been shown three cases in which the custom was set up in the Munsif's Court and failed. The first of these cases was in in the year 1892, Ram Dayal v. Bhola. It is quite clear from the judgment in that case that the Plaintiff failed to establish the custom because he produced no evidence to prove it. It also appears that he was unaware that he had to perform the "talab". In the second case, Mst. Ram Dulari v. Pundit Balak Ram, the Plaintiff brought to the notice of the Court two cases, doubtless those to which we have already referred, as proof of the existence of the custom, but she produced no documentary evidence and the oral evidence was not held by the Court to be sufficient to set up the custom, especially when the Court found that there was no proof that the necessary demands were made, and that the contradictions in the evidence showed that there was no truth in what the witnesses said. A third case which appears to have been connected with this one as the Plaintiff was the same and the chief witness Brij Lal was the same was dismissed on similar grounds. Thus since the year 1883 no Court has given a decision in which the earlier judgments showing the existence of the custom have been before the Court. In fact the cases were not conducted in such a way that the Courts were able to give a proper consideration to the plea that there had been a long standing custom going far beyond the year 1860, as is evident from the earliest decisions of pre-emption in this muhalla. In fact the cases were not conducted in such a way that the Courts were able to give a proper consideration to the plea that there had been a long standing custom going far beyond the year 1860, as is evident from the earliest decisions of pre-emption in this muhalla. We do not consider that the Appellant has made out any case to show that the custom of preemption has fallen into disuse, but we have permitted him to argue another point, although it is not clearly stated in the grounds of appeal, namely, that there is no sufficient material for us to hold that every custom under the Mahomedan Law prevails and that therefore no preference should be given to the Plaintiff who is what is described as sharik-i-khalit over the vendee who is admitted to be sharik-i-jar. 2. It is not disputed now that the Respondent is the nearer neighbour and there is a clear finding that his house actually abuts on the house in suit. In our opinion when it is held that the Mahomedan Law of pre-emption is adopted by custom among Hindus we must hold that the full law is adopted unlessthereis clear proof that some elements in that law are omitted. Here there is no such proof, and we consider that the Courts below are right in giving preference to the Plaintiff on the ground that he is the owner of an adjoining tenement. There is one more point to be considered. The Appellant vendee spent Rs. 100 on repairs to the house before the suit was brought. This amount was spent on the well, the staircase and the privy. Ordinarily speaking the vendee would be entitled to recover this sum as long as it was spent in good faith on the improvement of the property. The Courts below have however disallowed his claim or* the ground that he purchased only half the house, and that money was accordingly spent at his own risk and he must suffer for his folly. The Courts below have however disallowed his claim or* the ground that he purchased only half the house, and that money was accordingly spent at his own risk and he must suffer for his folly. We do not concur in this view, but we must take into consideration the fact that if only half the house was purchased he had only a right in half the well, the staircase and the privy, and only half the sum can be said to have been spent on his own behalf, the other half would accrue to the benefit of the joint owner. In our opinion the Appellant should be allowed Rs. 50 as compensation for the improvement. We therefore modify the order of the Court below to this extent that in addition to the sum to be paid for pre-emption the Plaintiff shall also pay a sum of Rs. 50 to the vendee in respect of his improvements within one month from this date. Proportionate costs are allowed throughout.