JUDGMENT Bhargava, J. - This appeal arises out of a suit for pre emption in respect of some landed property situate in Kumaon. Some agricultural land situate in Mauza Borahkot in the district of Naini Tal was sold by Lala Joga Sah, Defendant-Respondent, to Ballu Thekedar Defendant-Appellant, by means of a sale-deed, dated the 31st of January, 1944. The Plaintiffs-Respondents, Thakur Dan Singh and Dr. Ram Singh, claimed to pre-empt the sale and filed a suit in the court of the Senior Civil Judge of Naini Tal. The Senior Civil Judge held that the Plaintiffs Respondents were entitled to pre empt the sale in pursuance of the custom of pre-emption prevailing in Kumaon and hence decreed the suit in favour of the Plaintiff-Respondents. The Defendant-Appellant, who was the vendor, has filed this appeal challenging this decision of the Senior Civil Judge of Naini Tal. 2. Pre-emption of the sale in this case was not claimed under the Agra Pre-emption Act but on the ground of the existence of a custom of pre-emption prevailing in Kumaon. The lower court has rightly remarked that neither party produced any very relevant evidence on this question of the existence of the custom of pre-emption, and held that Stowell's book on 'The Land Tenures of the Kumaun Division' could be considered sufficient authority to prove the custom. Relying on it, the lower court gave the decision on this question in favour of the Plaintiffs-Respondents. In this appeal it has been contended by Mr. Pathak on behalf of the Appellant that it was necessary for the Plaintiff-Respondents to prove the custom and to show that this custom was applicable to all the villages and areas in Kumaon. Mr. P.L. Banerji on behalf of the Plaintiffs-Respondents has, on the other hand, argued that the custom of pre-emption in Kumaon is so prevalent that it is not necessary in very individual case to prove its existence. It is so well-recognised a custom that strict proof of its existence in every case must be dispensed with. 3. Mr. P.L. Banerji on behalf of the Plaintiffs-Respondents has, on the other hand, argued that the custom of pre-emption in Kumaon is so prevalent that it is not necessary in very individual case to prove its existence. It is so well-recognised a custom that strict proof of its existence in every case must be dispensed with. 3. In Premraj v. Chand Kunway, 1917 A.L.J. 607, their Lordships of the Privy Council, while dealing with a custom affecting the Jains which was at variance with the ordinary Hindu Law, re-marked: It is not doubtful that the ordinary rule is that a party relying on a custom affecting the Jains which is at variance with the ordinary Hindu Law must allege and prove it. But it is equally beyond doubt that a custom which has been recognised and affirmed in a series of decisions, each of them based on evidence adduced in the particular case, may become incorporated in the general law, with the result that the onus of proof no longer lies on those who assert it but upon those who assert an exception to it. 4. These remarks clearly lay down the principle that where a series of decisions has been based on the recognition of a custom, it is not necessary to prove the existence of that custom strictly by adducing evidence in support of it in every case. 5. Dealing with a question relating to the right of pre-emption in Kumaon, a Division Bench of this Court in Amla Nand v. Nandu, 1924 A.L.J. 126, expressed the following view: We should like to add that a right of pre-emption must, in the absence of statute, be based either on contract or custom. No contract has been suggested in this case. Presumabley the right claimed is based on customary law. In the absence of any statutory enactment or any entry in a public record of right, the custom may be deduced from a long series of decisions. 6. The comments in this case are fully applicable to the case before us and I would, therefore, hold that in this case, where there was no relevant evidence and no entry in the wajibularz or in the records was produced, the existence of the custom could be deduced from the published books dealing with this subject and from the series of decisions relating to Cases of pre-emption in Kumaon. 7. 7. It is admitted that the standard book on the subject of land tenures in Kumaon is that written by Stowell. In this book Stowell has mentioned the pre-valence of this custom of pre-emption in Kumaon. It is true that he has not specifically mentioned that this custom extends to every village in Kumaon but a reading of the whole discussion on this subject clearly indicates that this custom of pre-emption is recognised as prevailing throughout Kumaon and all the questions that have been disputed with regard to this custom from time to time have related to the detailed ingredients of this custom. Beginning the chapter on Pre-emption, Stowell says: The Kumaun custom of Pre-emption is a constant source of litigation and has produced a great number of rulings, not always consistent regarding its own peculiar rules. The origin, as Mr. Pauw remarks, is uncertain; but it has only been crystallised by definite rulings into a fixed formula in modern times, as the old cases quoted by Mr. Pauw indicate. 8. These remarks clearly show that, according to Stowell, the custom of pre-emption in Kumaun is general and it is only with regard to its own peculiar rules that there have been litigations and difference of opinion. Stowell has further mentioned: The custom is referred to more briefly in Mr. Goudge's settlement memorandum which notes that if any man sells land without the consent of, or without consulting, his heirs and the other co-sharers of the village, the latter will have the right of pre-emption. Mr. Beckett's Almora agreements merely say, 'we will not sell village land without the consent of all the co-sharers. It will be sold to outsiders only if none of the co-sharers agrees to buy it. 9. Stowell has thus relied on comments made by Mr. Backett and Mr. Goudge who were in charge of the settlement of Kumaon in parts at different periods. Stowell has also relied on the comments made by Mr. Pauw in his memorandum of village custom of the last Garhwal Settlement. The report of the 10th Settlement of the Garhwal district in the year 1896 was prepared by Mr. E. K. Pauw and in dealing with the custom Mr. E. K. Pauw remarked: Foremost among these is the custom of pre-emption. Pauw in his memorandum of village custom of the last Garhwal Settlement. The report of the 10th Settlement of the Garhwal district in the year 1896 was prepared by Mr. E. K. Pauw and in dealing with the custom Mr. E. K. Pauw remarked: Foremost among these is the custom of pre-emption. It is impossible to state what was the origin of this custom, whether borrowed from the Mohammedans, (which seems from the nature of the district most improbable) or of indigenous growth. The custom flourished previous to last settlement .... 10. Thus the comments made by Mr. Pauw in his settlement report also indicate that the custom of preemption in Kumaon is of universal extent. 11. Dr. L.B. Joshi in his book on 'The Khasa Family Law in the Himalayan Districts of the United Provinces, India' has dealt with this custom of pre-emption in Kumaon on page 197 in the following words: The right to pre-empt in the first instance belongs to the inner circle of agnates within three degrees and then to the outer circle which forms the village proprietary body. Pre-emption in Kumaon is of indigenous growth and not a foreign importation. There has been no Moslem influence in Kumaon. Preemption in Kumaon and in Jaunsar Bawar, like that in the Punjab, is the logical sequence of the disentanglement of individual rights of ownership out of the blended rights of the village community. 12. These remarks made in the various settlement reports, by Stowell in his book on 'The Land Tenures of the Kumaun Division', and by Dr. Joshi in his book on 'The Khasa Family Law' show the existence of this custom of pre-emption and its prevalance throughout Kumaon. 13. While dealing with the land tenure system in the district of Almora, Walton, in his Gazetteer (Volume XXXV) relating to the district of Almora, has mentioned the custom of pre-emption in that district in the following words: The hissedar is free to sell or otherwise dispose of his holding but he can only transfer his interest in undivided goan sanjait, not specified fields in it. The other co-sharers of the village within the third degree can claim pre-emption against an outsider, and those related to him can claim against other village co-sharers less closely connected. 14. Similarly, in his Gazetteer (Vol. The other co-sharers of the village within the third degree can claim pre-emption against an outsider, and those related to him can claim against other village co-sharers less closely connected. 14. Similarly, in his Gazetteer (Vol. XXXVI) relating to the district of British Garhwal, he remarked: The hissedar is free to sell or otherwise dispose of his holding, but he can only transfer an unascertained share in the Sanjait, not paticular fields in it. The other co-sharers of the village can claim pre-emption against an outsider and co-sharers related within the third degree can claim it against other co-sharers. 15. In both these books also the custom of pre-emption has been referred to in general and has been described as if it is applicable to every village throughout the districts. 16. Apart from these publications, there is a series of case law which has almost invariably dealt with the detailed provisions of this custom. A number of cases has been reported in Kumaun Rulings for Civil Courts' by Stowell which were published by the Government of the United Provinces as a Supplement to the United Provinces Gazette, Part I, on the 23rd of September, 1916, under Notification No, 959/VII-241, dated the 15th of September, 1916. A perusal of the cases cited in this book brings out the significant point that, in almost every case, the existence of the custom of pre-emption remained uncontested and invariably the dispute related to the incidents of the custom. In a number of these cases, the existence of the custom was proved by the production of the wajibularz prepared at the time of one settlement or another but in some cases no such wajibularz appears to have been produced. All these cases were decided by the Commissioner of the Kumaon Division exercising the powers of a Judge of the High Court of Kumaon. Particular reference may only be made to the case of Parjapati Naithani v. Kirpal Singh, Diwan Singh and Tej Bam Naithani reported on page 80 of Stowell's Kumaon Rulings for Civil Courts which case came before a Bench of this Court also on a reference Under Rule 17 of the Kumaon Rules. Particular reference may only be made to the case of Parjapati Naithani v. Kirpal Singh, Diwan Singh and Tej Bam Naithani reported on page 80 of Stowell's Kumaon Rulings for Civil Courts which case came before a Bench of this Court also on a reference Under Rule 17 of the Kumaon Rules. In this case also the existence of the custom of pre-emption was admitted though there was dispute about its ingredients as would appear from the following comments in the judgment: In the present case it would rather seem that both sides admitted that there was some right of pre-emption existing amongst the co-sharers in the village. The difference between them was that the vendee said that the custom did not extend to non-ancestra(sic) land, and that the Plaintiff being non-resident had no right against him, a resident. 17. In addition to these cases, reference may also be made to a series of decisions in cases which came up before the High Court. In Bhim Shah v. Ude Ram Shah, 1932 A.L.J. 108, reliance was placed on Stowell's 'Manual of the Land Tenures of the Kumaun Division' to determine the details of the custom of pre-emption and the existence of this custom was accepted without any dispute. The judgment would show that no evidence was given by the parties to prove the incidents of the custom and Stowell's book was considered sufficient authority for a proper determination of this question. Similar was the case in Bachauli v. Udai Singh, 1933 A.W.R. 768. In both these cases it was specifically mentioned that the Agra Pre-emption Act did not apply and that the suits were brought on the basis of the customary law. In Deb Singh v. Thagu Sah and Narain Singh, 1937 A.W.R. 960, the custom was again recognised on the authority of Stowell's book and the existence of a general custom of pre-emption was presumed, Lastly reference may be made to the case of Bishan Singh Gaur v. P.R. Sherred, 1938 A.W.R 464. This case was also decided on the basis of a finding that the custom of pre-emption did prevail in the village. This case was also decided on the basis of a finding that the custom of pre-emption did prevail in the village. The paper-book of the High Court in this case was before us and it showed that, in the trial court, the existence of the custom of pre-emption was contested and the pre-valence of the custom of pre-emption generally in Kumaon was held to be established on the basis of Stowell's 'Manual of the Land Tenures of the Kumaun Division' the Memorandum of the village customs prepared at the time of the Goudge's Settlement and the Iqrarnamas introduced at the Becket Settlement, 1872. The dispute on this point was, however, given up in the court of the District Judge and in the High Court. This review of the material available on the question of the existence of the custom of pre-emption in Kumaon in published books and in a series of decisions extending over a long period clearly leads to the conclusion that the custom of pre-emption exists generally throughout Kumaon. It also shows that the custom is of indigenous growth in Kumaon and is not based on the principles of the custom of pre-emption prescribed by Mohammedan law. 18. I, therefore, hold that the lower court was right in arriving at the finding that a right of pre-emption did exist in the village in dispute and in decreeing the suit on the basis of this finding. The appeal, therefore, fails and is dismissed with costs. Malik, C.J. 19. I agree and have nothing to add.