1. This is a defendant's appeal arising out of a suit for pre-emption. One of the pleas raised in defence was that the defendant was an ex-proprietary tenant in the mahal in which the property sold was situate and the suit for pre-emption against him did not lie. The suit has been decreed by both the Courts The learned Judge has remarked that the plaintiff's witness Tajammul Husain has stated that the village
is divided by perfect partition into six pattis,
and then gone on to say that
the share sold is in patti Ghissa, and the ex-proprietary holding of the defendant vendee is in patti Ali Bakhsh.
2. He has thus thought that when a village is divided into several pattis by perfect partition each patti is practically a separate mahal and the defendant is a stranger to the mahal. The whole finding is based on an entire misconception of what a perfect partition is as well as of the evidence of Tajammul Husain. Tajammul Husain only said that the village is divided into six complete pattis and one joint patti. The learned Judge mistranslated the words and put in 'perfect pattis' instead of 'complete pattis' in his notes. He has then misinterpreted it by thinking that the witness stated that the village itself has been divided by perfect partition into six pattis. The witness said nothing of that kind. What he stated was that the village has been partitioned into six complete pattis and one joint patti. Such a division is not a perfect partition under Section 106, Land Revenue Act. There is thus only one mahal and in that mahal the defendant is an exproprietary tenant. He is entitled to resist the suit for pre-emption under Section 9, Agra Pre-emption Act. The appeal is accordingly allowed, and the decrees of the Courts below are set aside and the suit dismissed with costs in all Courts including in this Court fees on the higher scale.