1. This is an appeal against an order of remand. It is preferred by the defendants-vendees in a preemption suit. We are concerned in this litigation only with the transfer of the vendors' proprietary rights in a village called Nawawan. The sale-deed way dated the 9th of July 1919 and according to its terms the vendors purported to convey to the vendees a share of 4 annas and odd in the proprietary rights of the said village, of which share he vendors described themselves as full proprietors. Now, it was an admitted fact in both the Courts below that this was a mis-description. The vendors did possess rights over the entire share purporting to be conveyed by the deed of sale; but as a matter of fact they were the proprietors of only a small fractional share and usufructuary mortgagees in respect of the remainder. The plaintiff pre-emptor was in this difficulty--she had admittedly no right to preempt the transfer of mortgagee rights by one usufructuary mortgagee to another. She felt herself compelled to limit her claim to that fraction of the share specified for the deed of sale of which the vendors were full proprietors. The extent of this fraction was specified in the plaint as a share of 4 pies only. The defendants replied that the fractional share held by them with full proprietary rights was in excess of 4 pies. The Trial Court took evidence on both sides, and eventually, without recording a precise finding as to the extent of the proprietary rights of the vendors, came to the conclusion that those rights extended over a share of 5 pies at least, if not more. On this finding the learned munsif dismissed the suit on the ground that it offended against the principle that a plaintiff claiming to pre-empt must preempt, all the property sold in respect of which he has any right of pre-emption at all.
2. There was an appeal to the District Judge and the lower Appellate Court has recorded a finding that the proprietary rights of the vendors extended to a share of 4 pies only. On this finding the decree of the Trial Court has been reversed and the suit remanded, to be tried cut on the merits with reference to otter issues raised.
3. The present appeal is against this order of remand. In so far as the petition of appeal seeks to challenge the lower Appellate Court's finding as to the extent of the proprietary rights of the vendors, we think it sufficient to say that that finding is, in our opinion, a clear finding of fact. There was evidence on both sides. The register of proprietary rights produced by the patwari of the village was discredited by the witness himself. Re said that the vendors somehow got themselves recorded as proprietors in respect of shares over which they only held mortgagee rights. The defendants produced an official from the tahsil and put in evidence an extract from a certain register of property rights, by which it was sought to show that at one time in the past the vendors had acquired by purchase proprietary rights in a share of 10 pies and odd. It seems to have been admitted that they had subsequently sold one-half of the proprietary rights then acquired, and it was on the strength of this evidence that the Trial Court held that the extent of the proprietary rights of. 1 the vendors at least exceeded a share of 5 pies. The lower Appellate Court had refused to treat this evidence as decisive and, upon a review of the entire evidence, has recorded its finding. We are not impressed by the contention that the learned Subordinate Judge has mislaid the burden of proof. This was a case in which evidence was ltd on both sides and a finding has been arrived at upon a review of the entire evidence.
4. There remain, however, two matters for consideration, one of which goes to the very roof of the case. We have been referred to a principle first laid down by tie pre-emption Bench of this Court in Sahodra Bibi v. Bageshri Singh 29 Ind. Cas. 1000 : 37 A. 529 : 13 A.L.J. 711. According to this principle it would have been, not merely open to the present plaintiff, but actually incumbent upon her, to disregard altogether any facts known to her regarding the actual extent of the proprietary rights of the vendors in this case. She could have taken them at their word and claimed to pre-empt the entire share, 4 annas, and odd, of which they described themselves as full proprietors in their deed of sale. The result would presumably have been a decree for preemption in her favour, on the strength of which she would have stepped into the shoes of the vendees and have acquired whatever rights, proprietary or mortgagee, the vendors possessed in the entire share of 4 annas and odd. Now this was probably the way in which the plaintiff ought to have taken the matter in hand, and if the point had been raised, against her either in the Trial Court, or in the lower Appellate Court we should have felt-disposed to give effect to the objection. We think it, however, very important that Courts subordinate to this Court should understand that we do not expect them to do more than try out a litigation on the pleadings of the parties and on the facts raised and put in issue before them. We are not disposed to lay upon them the burden of anticipating and meeting beforehand any objection to a plaintiffs suit which the ingenuity of abler and better instructed Counsel may find it possible to raise in this Court at the stage of second appeal. The question sought to be raised is not a question of limitation of which the Court is bound to take notice once it has been raised at any stage in a litigation. As this suit was actually tried in the Courts below, the defendants acquiesced in the position taken up by the plain tin herself that her right to pre-emption extended only to so much of the property conveyed by the' deed in suit as was held by the 'vendors with full proprietary rights. The suit having been tried out on this basis in the Courts below, we do not think we ought to allow the decision of those Courts to be interfered with upon a plea which was not merely not raised by the defendants in those Courts, but which is contrary to and inconsistent with the position there taken up by the defendants.
5. There remains only a small question regarding the order of the lower Appellate Court as to costs. We think it clear that there has been some error or oversight in the drawing up of the decree under appeal. There seems to be no justification in the record for the statement that the costs of the plaintiff in the Court of first instance amounted to Rs. 87-2-0. On the contrary the decree of the Trial Court, which is on the record, shows that the costs of the defendants were Rs. 87-2-0 while the plaintiff's costs were Rs. 11-140. This being a purely clerical en or and having been brought to our notice while we are seased of the matter, as a Court of Appeal--we think it right that we should correct the error at once. We do so, accordingly by ordering that in the decree of the lower Appellate Court the sum of Rs. 11-14-0 be substituted for Rs. 87-2-0 as the sum payable by the defendants Nos. 1 and 2 to the plaintiff for the costs of the Trial Court. Except as regards this matter we dismiss this appeal, and we think that; the appellants must pay all costs of this appeal.