A. P. SINGH, J. This Second Appeal has been filed by the defendant No. 1 questioning the legality of the decree and judgment passed by Civil Judge, Faizabad on 22. 5. 1956 in Civil Suit No. 3 of 1952 Choudhary Fazle Rab v. Mohd. Makin and another and of the Additional District Judge, Allahabad in first appeal No. 328 of 1957 decided on 31st March, 1977 affirming trial courts judgment and decree. 2. Respondent filed a suit for pre-emption claiming his superior right of purchase of the house in suit as against husband of Mst. Manzooran Nisa Bibi, defendant No. 2. The said defendant No. 2 got the house in suit from her husband in lieu of dower debt through a sale-deed executed in her favour by her husband. She then transferred the said house in favour of the appellant, who was defendant No. 1 in the suit, for a sum of Rs. 6,000/-on 15. 1. 1951. Respondents claimed in the suit that being a co-sharer in the house in suit he is entitled to pre-empt the property against the appellant. Defendants filed a common written statement for resisting the suit. It was inter alia pleaded by them that since the house in suit was situate in the township of Tanda and not in a revenue village therefore no presumption of existence of the right of pre-emption in favour the plaintiff on the ground of co-sharership neither under Section 7 of the Awadh Laws Act arose nor there was in vague a custom to that respect prevalent in that area. 3. Since arguments in this appeal have been confined before me only on this point I do not consider it useful to mention other objections which defendants raised in their joint written statement for resisting the claim of pre-emption which was set up by the respondent in his suit. 4. The trial Court (Sri R. S. Mishra, Civil Judge, Faizabad) in his judgment held that from Exbts. 4. The trial Court (Sri R. S. Mishra, Civil Judge, Faizabad) in his judgment held that from Exbts. 22, 23, 28 and 29 which were judgments of the years 1915, 1924 to 1926 relating to the village Sakhrawal, where the land in suit is situate, custom of pre-emption had been found to exist in village Sakhrawal as well as in the area where the house in suit is located therefore existence of custom was bound to be presumed in plaintiffs favour and since defendants failed to adduce any evidence to rebut that presumption existence of the custom stood proved from those exbts. 5. Defendants filed 1st appeal in this Court, the appeal was however transferred for being decided by District Judge, Allahabad on account of change of jurisdiction. The appeal therefore came for decision before 1st Additional District Judge, Allahabad. First Additional District Judge, Allahabad found that necessary issue which ought to have been framed and decided in the suit had not been framed. Accordingly he framed that issue and remitted the case back to the trial Court under Order XLI, Rule 25 of Civil Procedure Code for returning a finding on that issue; the issue was: "whether the site in question had acquired the character of a town site on the date of the transfer in question or whether it was part of a revenue being in Mohal Sakhawat Ali of an agricultural village ?" 6. Sri U, C. Dikshit, Civil Judge, Faizabad heard the case after remand and returned the finding on the issue. He held that the house site, which was subject-matter of sale in favour of defendant No. 1 by defendant No. 2 was part of Municipal area of Tanda and had acquired the character of a town site also on the date of the transfer in question and that it was no longer a part of the agricultural village of Sakhrawal. 7. 7. The above issue was framed by the 1st Appellate Court in view of the plea set up by the plaintiff (respondent herein) claiming right of pre-emption on the ground that he being a co-sharer with defendant No. 2 in Mohal Sakhawat Ali of which the house site formed a part, possessed a superior right by way pre-emption under Section 7 of the Awadh Laws Act and in view of the custom prevailing in the revenue village of Sakhrawal to which Mohal Sakhawat Ali related. Though the respondent challenged the abovementioned finding which was recorded by Sri Dixit but the 1st appellate Court being of the view that on the evidence available before the trial Court the finding was fully justified it accordingly affirmed that finding. However despite having turned down respondents challenge to the correctness of the finding of the trial Court relating to the house site in dispute being no longer situate in the revenue village of Sakharwal and its having attained the characteristics of a township, the first appellate Court held that the custom of pre-emption which has been proved to be prevalent both in the revenue village and the township of Sakharawal from Exbts. 22 to 29 relate to periods subsequent to the time when the village Sakharawal had become part of Municipal area of Tanda and had already attained the characteristic of a township. 8. As against the above judgments (Exbts. 22 to 29) showing existence of custom of pre-emption in the village and Mohalla of Sakhrawal in Tanda Municipal area appellant placed reliance on a Division Bench judgment of Oudh Court in Abdul Alim and others v. Hayat Mohammad and others, AIR 1946 Oudh 188 so as to demonstrate that after the village of Sakhrawal became a township customs prevalent in the revenue village of Sakhrawal ceased to be practised in township and became extinct. The lower appellate Court however discarded the above decision of the Division Bench in the following words:- "but this ruling was with respect to a different matter and apparently it has itself made a distinction with respect to the other presumption the ruling referred to therein which are 70 cp 74, 60 WN p 277 and 70 WN p 547; the following is the observation of ruling itself. "the first two are pre-emption cases and neither of them applies. "the first two are pre-emption cases and neither of them applies. " Therefore on the basis of the above ruling it cannot be said that the custom of pre-emption was also held inapplicable to the dispute area when under the Awadh Laws Act such a custom is allowed to be shown to exist under Section 8 thereof even in town and city. ". 9. The lower appellate Court in my opinion was not right in picking up few words from the judgment in Abdul Alim so as to discard the view expressed by the Division Bench on the question of continuity of customs in the townships which were prevalent and practised in revenue villages so as to ensure compactness of the holdings and family and residential houses. The reasonings given by the D. B. in Abdul Alim though no doubt is in respect to the custom of escheat it could stiff offer a very stand reason for non-application of custom of pre-emption as well to township on account of complete transformation in the social system prevalent in cities as compared to the one prevalent in villages which must equally hold good for the custom of pre-emption. 10. The Division Bench in para 12 of the report (AIR 1946 Oudh p. 188) at page 192 states: "the inhabitants of muhalla Sakrawal are subject in all respects to liabilities which are imposed on other inhabitants of Tanda town. They are as much liable to pay taxes imposed by the Municipal Road as any other inhabitants in the town. The population of the town is non-agricultural, the inhabitants being engaged in avocations pertaining to different crafts and industries. Assuming but not admitting for a moment that the custom alleged by the plaintiff exists in respect of Sakrawal village and the agricultural tenants in the village hold the sites subject to the prohibition of transfer as alleged, can it be contended that this prohibition extends to those persons who neither reside in the village nor hold any lands therein but on the contrary reside in the town, it cannot be doubted that Tanda is a town-and carry on occupations other than agricultural ? We think not. " 11. We think not. " 11. Again in para 13 on the same page of the report the Division Bench has stated thus: "if the Iqrar-i-Malikan Deh prepared in 1874 embodied the conditions governing the grant of residential sites to the agricultural tenants, it must be taken that these conditions were accepted for the first time in 1874 by the occupiers of sites. It did not embody any contract entered into prior to that date between the occupiers of the sites and the owner of the village, nor did it embody any conditions restricting the transfer of sites which did not form part of the village. It must be remembered that muhalla Sakrawal was constituted in 1870 long before the Iqrar-i-malikan Deh was prepared. The restrictions on transfer contained therein could not, therefore, have been intended to have restrospective effect. It is true that in the Khewat and Khasra of the old settlement all the abadi plots of Sakrawal village were included therein notwithstanding the fact that a portion of these had already been included in Tanda town. This, however, in our opinion, cannot lead to the inference that the occupiers of the lands who ceased to have any concern since 1870 with village Sakrawal should be held to be governed by the conditions which were imposed for the first time in 1874 by the owners of the village on the occupiers of the abadi sites in that village. " , Above important and authoritative observations were made by the division bench after tracing out the history of evolution of the social structure in the village and town of Sakrawal and the customs which were recorded in the year 1874 for being practised in the context of the rural set up of the society could not be side lined by the lower appellate Court simply on the ground that the Division Bench by itself distinguished its decision from those which were cited before it on the ground that the case before it was not a case of pre-emption. No doubt the division bench made the above observation but it was made in a wholly different context which had no relevance to the observation the D. B. made in the paragraphs which have been referred to herein above and bore relevance to the controversy which the lower appellate Court had to resolve in the appeal before it. No doubt the division bench made the above observation but it was made in a wholly different context which had no relevance to the observation the D. B. made in the paragraphs which have been referred to herein above and bore relevance to the controversy which the lower appellate Court had to resolve in the appeal before it. Section 7 of the Oudh Laws Act provides : "unless the existence of any custom of contract to the contrary is proved, such right shall, whether recorded in the settlement record or not be presumed. " 12. Thus according to Section 7 until a custom or contract to the contrary is proved existence of the right of pre-emption has to be presumed in all village-communities in respect to properties, whether proprietary or under-proprietary or which are referred under Section 190 of Oudh Rent Act and also to village sites and to the houses built on it and to all land and shares of lands within the village boundary and to all transferable rights affecting such land. 13. Section 8, however, specifically bars raising of presumption regarding existence of the right of pre- emption in a town or city which as per Section 7 has to be presumed in respect of villages. 14. Therefore no aid could also be had by the lower appellate Court from Section 8 of Oudh Laws Act as to the existence of the custom of pre-emption in the township of Sakhrawal which in Abdul Aims case, after a detailed investigation of facts relating to the social system prevalent in townships and evolution of custom in the year 1874, was held by the Division Bench in Abdul Alan not to exist in Mohalla Sakrawal in the city of Tanda. 15. There is yet another important aspect which unfortunately escaped the notice of the appellate Court. The judgments on which it placed reliance for believing the existence of the custom of pre- emption in the township of Sakrawal related to a period more than 50 years prior to the period to which the case before it was involved. 15. There is yet another important aspect which unfortunately escaped the notice of the appellate Court. The judgments on which it placed reliance for believing the existence of the custom of pre- emption in the township of Sakrawal related to a period more than 50 years prior to the period to which the case before it was involved. A period of 50 years is sufficiently a very long period of time gap during which the customs which may have been practised at that point of time in the area on account of its close vicinity to the village community might have dwndled out of existence and urban life style, peculiar to cities, might have, in the process been adopted in that area bidding a good bye to the old rural customs which were in vague there for the reason of its having been carried along from the time when it was a village community. 16. Section 8 cast a duty on the respondent to prove as a fact existed and practice of the custom of pre- emption in the township of Sakrawal in the recent past. The proof of custom contemplated by Section 8 is to be tendered in relation to the time of the transaction in question and not only in relation to the area alone. For getting a decree on the basis of his right of pre-emption and for annulment of the transaction of sale in question by defendant No. 2 made in favour of the appellant in the year 1951 respondent was under a legal obligation which was cast on him of the Oudh Laws Act read with Section 101 of the Evidence Act, 1872 to demonstrate by tendering cogent evidence that the custom of presumption, which was meant to be practised in the village community to revenue village Sakhrawal was still in vague even in the year 1951 in the township of Sakhrawal. 1946 Oudh 188 (Abdul Alims case) related to the period which was closer in the point of time as compared to the point of time to which present transaction related which obviously had no nexus to the point of time to which transactions which were involved in Exbts. 22 to 29. 1946 Oudh 188 (Abdul Alims case) related to the period which was closer in the point of time as compared to the point of time to which present transaction related which obviously had no nexus to the point of time to which transactions which were involved in Exbts. 22 to 29. Evidence showing existence of custom at a point of time which is spanned by a great time gap is of no relevance and has to be discarded unless of course proof is also offered showing continuity of that custom even upto a period which must bear closeness to the point of time to which the transaction in question related. There is no evidence on the point on the record of the suit to that effect, concedes Sri Murlidhar also the learned Senior Advocate, appearing for the respondent. 17. Assuming that Exbts. 22 to 29 proved existence and prevelence of the custom of pre-emption in the township of Sakhrawal during the period over 50 years earlier to the time to which sale-deed in question related still that evidence was of no avail to the respondent for establishing continuance of that custom and its existence in that area even in the year 1951 when the sale of the house in favour of the appellant took place. What is enjoined by Section 8 is not to tender proof regarding existence of custom alone but its being in vague at the relevant time. 18. Section 101 of the Evidence Act too enjoins "whoever desires any court to give judgment as to (existence of) any legal right or liability dependent on the existence of the fact which he assert (to exist), must prove that those facts exists. " In the light of the legislative mandate of Section 8 of the Oudh Laws Act and Section 101 of the Evidence Act respondent, who claimed the right of pre-emption on the basis of custom was under an obligation to lead evidence to prove that the custom of pre-emption was in vague in the township of Sakhrawal even at the time when the transaction in question was made in derogation of that custom because what at the most could be proved from Exts. 22 to 29 was confined to the practice of the custom of pre-emption in the township of Sakhrawal at the time to which those judgments related which obviously were over 50 years prior to the year 1951, when the transaction in question in the suit related. However, as conceded by the learned counsel for the respondent himself as also from the record the position is that no such evidence in this respect was led by the respondent who thought that the job was done well only by filing of Exts. 22 to 29. No Court could have granted the decree on this type of evidence which the respondent tendered to prove his right of pre-emption. The evidence tendered by the respondent was incomplete and left too much to be desired. 19. Sri G. N. Verma learned counsel for the appellant further contends that right of pre-emption which may be in vague in Mohal Sakhawat Ali by its nature was peculiar to agricultural land which was subject to co-sharing by the co-sharers of the Mohal which according to Sri Verma will have no application to house sites. It do not agree with this contention. Section 7 of the Oudh Laws Act is applicable apart from to proprietary and under-proprietary right in agricultural land as also to village sites and houses built on it. Section 8 requires proof of the custom to be given in respect of both whereas Section 7 raises presumption existence of such a custom for both. 20. Sri Verma furhter argued that right relating the pre-emption recognised either by custom or by legislative enactments in respect of urban house sites have since been frowned upon by the Supreme Court in number of decisions ; therefore, argues Sri Verma, even if its existence is established by the respondent still no decree could lawfully be passed in his favour because the right of pre-emption in respect to urban house sites transgresses upon the fundamental rights of the defendant No. 2 guaranteed under Article 19 (1) (f) of the Constitution of India. 21. In Bhav Ram v. Baij Nath, AIR 1962 SC 1476 , Supreme Court speaking through five Honble Judges (except for Mr. 21. In Bhav Ram v. Baij Nath, AIR 1962 SC 1476 , Supreme Court speaking through five Honble Judges (except for Mr. A. K. Sarkar, J.), held that clog of the right of pre-emption either by law or by custom put on owners right to hold and dispose of the property is not reasonable as it is based on the vicinage so as to rule out persons who are strangers to the family or caste to live with those who are members of a particular sect, family, religion etc. In para 7 of the report Supreme Court spoke in the following words: "the reasonableness of a custom is, however, not a constant factor and what is reasonable at one stage of the progress of society may not be so at another stage. It is in this context that we have to Judge the law of pre-emption as it was later put into various statutes. Before the Constitutor ii came into force, the Statues if they were passed by competent authority, could not be challenged; but we have no to Judge the reasonableness of these statutes in the light of the fundamental rights guaranteed to the citizens of this country by the Constitution. In a society where certain classes were privileged and preferred to live in groups and there were discriminations on ground of religious, race and caste, there may have been some utility in allowing persons to prevent a stranger from acquiring property in an area which had been populated by a particular fraternity or class of people and in those times a right of preemption which would oust a stranger from the neighbourhood may have been tolerable or reasonable but the constitution now prohibits discrimination against any citizens on ground only of religion, race, cast, sex, place of birth or any of them under Article 15 and guarantees a right to every citizen to acquire, hold and dispose of property, subject only to restriction which may be reasonable and in the interest of the general public. Thought, therefore, the ostensible reason for preemption may be vicinage, the real reason behind the law was to prevent a stranger from acquiring property in any area which had been populated by a particular fraternity or class of people. Thought, therefore, the ostensible reason for preemption may be vicinage, the real reason behind the law was to prevent a stranger from acquiring property in any area which had been populated by a particular fraternity or class of people. In effect, therefore, the law of pre-emption based on vicinage was really mean to prevent strangers that is people belonging to different religion, race, or cast, from acquiring property. Such division of society now into groups and exclusion of strangers from any locality cannot be considered reasonable and the main reason, therefore, which sustained the law of pre-emption based on vicinage in previous times can have no force now and the law must be held to impose and unreasonable restriction the right to acquire, hold and dispose of property as now guaranteed under Article 19 (1) (f) for it is impossible to see such restrictions as reasonable and in the interest of the general public in the state of society in the present day. 22. Similarly in Atma Prakash v. State of Haryana, AIR 1986 SC 859 Supreme Court (bench of 5 Honble Judges) in para 13 of the report spoke thus: "we are thus unable to find any justification for the classification contained in Section 15 of the Punjab Pre-umption Act of the kinsfolk entitled to pre-emption. The right of pre-emption based on consanguinity is a relic of the feudal past. It is totally inconsistent with the constitutional scheme. It is inconsistent in modern ideas. The reasons which justified its recognition quarter of centry, namely, the preservation of the integrity of rural society, the unity of family life and the agnatic theory of the succession are today irrelevant. The list of kinsfolk mentioned as entitled to preemption is intrinsically effective and self-contradictory. There is, therefore, no reasonable classification and clauses firstly, secondly and thirdly of Section 15 (1) (a), firstly, secondly and thirdly of Section 15 (1) (b ). Clause firstly, secondly and thirdly of Section 15 (1) (c) and the whole of Section 15 (2) are, therefore, declared ultra vires the Constitution. 23. Again in Sant Ram v. Lakh Singh, AIR 1965 SC 814 Supreme Court, again struck down the law confining right of preemption on the ground of vicinage being violative of Article 19 (1) (f ). 24. 23. Again in Sant Ram v. Lakh Singh, AIR 1965 SC 814 Supreme Court, again struck down the law confining right of preemption on the ground of vicinage being violative of Article 19 (1) (f ). 24. Supreme Court, however, has upheld the custom and legal provisions relating to the right of pre- emption in agricultural land in favour of co-sharers. This right on the basis of co-sharership of agricultural land will however not extend to house sites in urban areas. 25. I do not agree with Sri Murlidhar that since the right in the suit was claimed by the respondent by virtue of his being a co-sharer in Mohal Sukhawat Ali therefore the fact that the subject-matter of transfer in question being a house-site will have no significance. The argument is on its face untenable. Concept of Mohal is unknown to non-agricultural lands. It is confined to co-sharing in agricultural land where joint tilling of land by co-sharers of the Mohal is conceived raising joint liability for payment of rent, with the area having fallen in the town of Tanda the question of joint liability for payment of rent automatically disappeared in respect of house sites. So nothing of the nature is involved in co-sharing of house sites which is essentially based on the principle of vicinage. Such practice and custom, having become out of date with the advent of constitutional guarantees contained in the Constitution of India, it can no longer be enforced in courts of law. 26. Result of the above discussions is that for reasons given herein-above this appeal succeeds and is accordingly allowed. Judgment and decree passed by the Courts below are accordingly set aside; the suit filed by the plaintiff-respondent is dismissed with costs throughout. Appeal allowed. .