15th Feby. 1907. the meaning of clause (a) of Section 595 and therefore no appeal lies from such an order to the Privy Council. Tetley v. Jai Shankar (1), Habib-un-nissa v. Munawar-un-nissa (*), Aben Sha Sabit Ali v. Cassirao Baba Sahib Holkar (*), and Mahant Ishvargar Budhgar v. Candasama Amar Singh (*), followed. Sayad Mazhar Hussain v. Mussammat Bodha Bibi ("), distinguished. Application for leave to appeal to the Privy Council from a decree of the Chief Court of the Punjab, dated 27th February 1906. Ishwar Das, for petitioner. M. S. Bhagat, for respondent. The judgment of the Court was delivered by JOHNSTONE, J.-This is an application for leave to appeal to the Privy Council, such an application can only be granted if it falls under one of the clauses of Section 595, Civil Procedure Code. In this case this Court, holding that the Court below had decided the suit on a preliminary point (viz., locus standi), reversed the finding on that point as erroneous and passed an order of remand under Section 562, Civil Procedure Code. The" value 99 here is sufficient to warrant an appeal under clause (a) of Section 595 read with Section 596; and the real question therefore is whether the order passed by us can be said to be a final decree, see Section 595, clause (α). Mr. M. S. Bhagat on behalf of plaintiff urges that it is not a final decree. It is certainly a "decree" for the purposes of Chapter XLV of the Code-see Section 594; but we hesitate to call it a final decree. It does not dispose of the case; and in Tetley v. Jai Shankar (1), Habib-un-nissa v. Munawar-un-nissa (2), Aben Sha Sabit Ali v. Cassirao Baba Sahib Holkar (3), and Mahant Ishvargar Budhgar v. Candasama Amar Singh (*), such an order has been treated and spoken of as little more than an interlocutory order. In Sayid Mazhar Hussain v. Mussammat Bodha Bibi (5), an appeal to the Privy Council was allowed against a remand order under Section 562, Civil Procedure Code; but this was because it was found that the order really disposed of the whole case and that the remand should not have been so made. If the final decision is against petitioners in this country they can still, in appealing to the Privy Council, ask that tribunal, to take up the question of locus standi, which alone has so far been decided against them. Therefore, we also think that we should not grant a certificate under clause (c), inasmuch as petitioners have in our opinion another remedy much more convenient for all parties, and farther because they may succeed in their case on the merits, in this country, in which circumstances an appeal now upon our order would be a mere waste of money. Petition refused with costs. Application dismissed: No. 53. Before Mr. Justice Reid. SHAHABAL SHAH AND OTHERS,—(DEFENDANTS),— APPELLANTS, Versus GANESH DAS AND ANOTHER,-(PLAINTIFFS),— RESPONDENTS. Civil Appeal No. 1018 of 1904. Abandonment of land-Suit to recover possession-Absentee― Adverse possession. Held, that mere non-occupation and non-cultivation of unculturable land for a long period does not, in the absence of a motive or evidence of intention to abandon or of adverse possession for the statutory period, constitute abandonment. Further appeal from the decree of W. A. Harris, Esquire, Pestonji Dadabhai and Nanak Chand, for respondents. APPELLATE SIDE. REID, J.-The facts are stated in the judgments of the 15th Feby. 1907. Courts below: I see no reason for interference. The vendor's father, Gul Shah, certainly acquired the land in suit on a compromise of the suit between him and Ghulam Shah, ancestor of the appellants in 1855, and in 1856 it was consequently entered in the name of Gul Shah at settlement. In 1874, in the course of a suit between Gul Shah and Jiadwada, father of the appellants, Jind wad a stated that Gal Shah had no land except that now in suit, and neither Gal Shah nor his son, the vendor, expressly abandoned the land, or discontinued possession 12 years before suit. Counsel for the appellants relied on Ilahi Bakhsh v. Shamasud-din (1) and Mohima Chander Mazoomdar v. Mahesh Chandar Neoghi (2). In the latter case their Lordships of the Privy Council held that plaintiffs in a suit for possession, based on their title, had to prove their possession within 12 years of suit; and in the former case it was held that a claimant, the sole recognization of whose rights was the record of his father's name in a list of absconders attached to paragraph 8 of the record of rights in 1854, had failed to establish the discontinuance of his possession. The suit was instituted in November 1890. Neither of these authorities helps the appellants. It is admitted that the land in suit was not assessed to Government revenue, and the owners consequently did not abandon it to evade payment of revenue. In the absence of motive for abandonment, and of evidence of intention to abandon or of adverse possession of the appellants for the statutory period, the suit is not barred by Article 142 or Article 144 of the Limitation Act, and the record does not contain any satisfactory evidence of such motive or intention or adverse possession. Failure to cultivate unculturable land does not constitute abandonment. Ramzan Ali v. Basharat Ali (3), and very little, if any, of the land was culturable. As pointed out by the lower Appellate Court, mutation was effected in favour of the vendor in 1901, on his father's death, after the appellant Shabal Shah had been asked what the facts were, and this was after the vendor had been recorded as an absentee and the appellants had been recorded as in possession during the settlement of 1901-02. The suit was instituted in 1902. In my opinion neither the vendor nor his father abandoned the land in suit and neither of them discontinued possession or were ousted twelve years before suit. The appeal fails and is dismissed with costs. Appeal dismissed. (1) 109 P. R., 1892: (2) I. L. R., XVI Calc., 178, P. O (3). 105 P. R., 1901. No. 54. Before Mr. Justice Robertson. SUNDAR SINGH,—(PLAINTIFF),-APPELLANT, Versus MEHR SINGH,-(DEFENDANT),-RESPONDENT. Civil Appeal No. 1293 of 1906. Custom-Pre-emption-- Pre-emption on sale of shops-Katra Ramgarhian, Amritsar city-Punjab Laws Act, 1872, Section 11. Held, that the custom of pre-emption in respect of sale of shops by reason of vicinage in Katra Ramgarhian of the city of Amritsar has not been established. Further appeal from the decree of Captain A. A. Irvine, Additional Ram Bhaj Datta, for appellant. Sukh Dial and Roushan Lal, for respondent. The judgment of the learned Judge was as follows: APPELLATE SIDE. ROBERTSON, J.-The sole question for decision is, does the 8th Jany. 1907. right of pre-emption obtain as regards shops in the Katra Ramgarhian of the Amritsar city? It is quite clear that it lay upon the plaintiff to prove affirmatively that the custom does obtain. The learned Ad. ditional Divisional Judge has held that the evidence offered in proof of its existence is insufficient. Proof that a custom exists in regard to houses is not suffi cient to show that the custom exists as regards shops. The building, which it is sought to pre-empt in this case, is a shop pure and simple. There is one instance quoted in which in 1899 the Munsiff, 2nd class, held that the custom of pre-emption did exist in regard to shops, but this is the only instance in regard to shops pure and simple. There are two other instances, one in 1882 and one in which Mussammat Ram Kaur was plaintiff, mentioned by the witnesses in which the right of pre-emption was successfully asserted in regard to tenements which were partly dwellinghouses and partly shops. The other instance relates to dwelling-houses only. No evidence was offered by the defendants but the question is whether or not the plaintiff has succeeded in proving conclusively that the custom does obtain. I agree with the learned Divisional Judge that he has not, and reject the appeal with costs. Appeal dismissed. APPELLATE SIDE. 25th June 1906. No. 55. Before Mr. Justice Lal Chand. CHIRAGH DIN,- (PLAINTIFF),-APPELLANT, Versus NIZAM DIN AND OTHERS,-(DEFENDANTS),-RESPONDENTS. Civil Appeal No. 741 of 1906. Res judicata-Suit for declaration of ownership of land by purchaseDismissal of suit on merits- Subsequent suit for possession by same plaintiff as heir-Different causes of action-Civil Procedure Code, 1882, Section 13. Held, that the dismissal of a suit for a declaration that the plaintiff was the sole owner in possession of certain land by purchase is not res judicata in a subsequent suit brought for the possession of the same property on the ground that the plaintiff was entitled to the said land not as an owner but as heir and adopted son of the last male owner inasmuch as his title as an heir being an inconsistent claim could not have formed an alternative ground of attack in the former suit without creating confusion. Although a party is bound to put forward all grounds of attack as have reference to the same cause of action but where several independent grounds are available to him he is not bound to unite them all in one suit. Further appeal from the decree of J. G. M. Rennie, Esquire, 25th May 1904. Oertel and Zia-ud-din, for appellant. Nabi Bakhsh, for respondents. The judgment of the learned Judge was as follows: LAL CHAND, J.-The lower Courts have dismissed this suit as barred by Section 13, Civil Procedure Code, under the following circumstances. One Katba, who was entered in the revenue papers as owner and mortgagee of portions of the land in suit, died childless on |