1. The plaintiff brought a pre-emption suit and in his plaint he omitted to say in what mahal the property which he desired to pre-empt was situated. He mentioned at the end of the plaint seven mauzas and one patti in those seven mauzas and in para. 2 of the plaint he stated that the plaintiff and defendant 4 Mt. Hubraji Kunwar, the alleged vendor, were co-sharers in and zamindars of Mauza Naikdeh. Kuber Singh, defendant 1, one of the alleged vendees, pleaded in para. 18:
The defendant is an exproprietary tenant in mauza Rasulpur. Accordingly the plaintiff has no right of pre-emption on this ground as well.
2. On this pleading the trial Court framed issue 2:
Whether the defendant is an exproprietary tenant in the mahal in question and hence the plaintiff's suit for pre-emption is not maintainable
3. On this issue the trial Court found:
Defendant 1 is exproprietary tenant in village Rasulpur. There are several pattis in village Easul-pur. The defendant's exproprietary tenancy is in a different patti and not in the patti in which the property is situate. The plaintiff is co-sharer in the same patti in which the property in dispute is situate. The plaintiff being co-sharer in the patti in which the property is situate is entitled to preempt the property of village Rasulpur also. My finding on this issue is that defendant is exproprietary tenant in one appurtenant village only but as the exproprietary tenancy is in a different patti from the patti in which the property in dispute is situate and plaintiff is co-sharer, therefore plaintiff is entitled to pre-empt the property of village Rasulpur also.
4. The trial Court therefore granted a decree for pre-emption of the whole property on payment of Rs. 100. The defendant Kuber Singh brought an appeal in the Court of the District Judge and ground No. 4 was 'The plaintiff has no right to bring a suit for pre-emption.' The learned Judge of the lower Appellate Court held that the Munsif ought to have given his finding whether or not the defendants were exproprietary tenants in the mahal and remanded the case to the Munsif for decision on this point:
In the light of this finding he will dispose of the suit. The parties will be given opportunity to file documentary evidence but no fresh oral evidence will be recorded.
5. He therefore made a remand specifying the order as made under Order 41, Rule 23. The plaintiff filed a first appeal from order in this Court and the learned single Judge held:
It seems to me that the question whether the defendants were exproprietary tenants in the mahal or not is quite irrelevant to the issue. What is of importance is whether the defendants are cosharers in the patti in which the property is situated. Now the learned Munsif has held that the defendants are not co-sharers in the patti in which the property is situated. In these circumstances the plaintiffs were entitled to succeed and to oust the defendants in whose favour the sale deed had beon exeouted. There was no reason at all for the Munsif to record a finding whether the defendants wore exproprietary tenants in the mahal.
6. The order of remand was set aside and the decree of the Munsif was restored. The Letters Patent appeal has been brought against this judgment. Now it is remark, able that throughout these proceedings there has been no reference at all to the Section of the Agra Pre-emption Act, 11 of 1922, which deals with the defence raised by the defendant-appellant before us. The Section in question is No. 9 and it provides as follows:
No right of pre-emption shall accrue on a sale to, or foreclosure by, an exproprietary tenant, of any proprietary interest in land in the mahal in which lie holds such exproprietary tenancy.
7. Learned Counsel for the plaintiff-respondents argues that this Section means that the defence by an exproprietary tenant will only be valid if the sale is of proprietary interest in the same land in which the exproprietary tenancy exists. To obtain this interpretation of Section 9 he alleges that the word 'which' in that Section refers to land and not to mahal. In our opinion this 13 an error in English grammar and this construction cannot be made in correct English. Further if this had been the intention of the Legislature the words 'in the mahal' wore superfluous and should have been omitted and the clause would then have run 'of any proprietary interest in and in which he holds such exproprietary tenancy.' The Legislature has inserted the words 'in the mahal' and we consider that these words must have some meaning and the moaning in our opinion is that the exproprietary tenancy should be one in the mahal and this is sufficient if this is shown.
8. Learned Counsel further argued that Section 9 should be read as governed by Section 12 and that an exproprietary tenant should only have a good defence if he were a person who before he became an exproprietary tenant had such a right as a cosharer as would have entitled him to pre-empt under Section 12, the right being equal to or superior to that of the plaintiffs. We see no reason to suppose that Section 9 is to be read in connexion with Section 12 and there is nothing in Section 9 to this effect. Apparently, the intention of the Legislature in making this provision in Section 9 was that a person who had at one time been a proprietor in the mahal and who still held an exproprietary tenancy in any part of the mahal should not be prevented by a suit for pre-emption from again acquiring the status of a proprietor in the mahal. No ruling was produced on behalf of the plaintiffs-respondents to indicate that the very peculiar interpretation of Section 9 had ever been accepted by any recorded ruling. On the other hand in Nasrat Ali v. Rudra Nath : AIR1929All448 a Bench of this Court held that Section 9 did apply in the manner in which we interpret it, that is, that it is sufficient for the defence under Section 9 that there should be an exproprietary tenancy in any part of the mahal and not in the particular portion sold or in the particular patti in which the portion sold is situated.
9. Some further argument was made that the Court below was wrong in directing that the parties should have an opportunity to file documentary evidence. The Court did not allow fresh oral evidence. In our opinion, the documentary evidence is necessary because in the extracts filed by the plaintiff of the khewat the plaintiff has omitted to file that portion of the khewat which would show the name of the mahal to which the extracts refer. It is to remedy this omission that the further documentary evidence is necessary. Some further argument was made that no Letters Patent appeal lay. But learned Counsel did not attempt to justify his argument by any reference to the provisions of Section 10 of the Letters Patent. On the other hand, his argument was by reference to various Sections of the Civil Procedure Code. That Code has no bearing on the right of Letters Patent appeal and the argument therefore does not convince us. Under these circum. stances we allow this Letters Patent appeal and restore the order of remand of the lower Appellate Court. The appellant Kuber Singh will have his costs in both proceedings in this Court from the plaintiffs.