1. This is a defendant's appeal arising out of a suit for preemption. The defendant acquired a specific plot of land No. 777 by virtue of a deed of a gift during the pendency of the suit. It is conceded that if by virtue of this acquisition he has become a cosharer in the mahal he is entitled to resist the claim. Both the Courts below have decreed the suit and held that the defendant has become a mere petty proprietor. They have noted that he has acquired only a specific plot 777 but have not gone into the further question whether he is entitled to any interest in the joint lands of the mahal or to take part in the administration of its affairs. The definition of a petty proprietor given in Section 4(7), Agra Tenancy Act makes it quite clear that the mere fact that a person is the proprietor of a specific plot of land does not make him a petty proprietor. It should further appear that he is not entitled to such an interest in the joint lands of the mahal or to take part in the administration of its affairs. The Courts below have not gone into this further question. Their finding is therefore not merely one of fact. Under the deed of gift the plot in question was transferred to him for the purpose of planting a grove, but it was recited in the deed by the donor that this plot was a share out-of the share remaining in his hands which represented the fraction 4-1484/2789 of the entire mahal. The deed does not say that the donee would not be entitled to take part in the administration of the affairs of the mahal. The khewat shows that the donee by virtue of this gift is included among the body of cosharers who own the entire 16 annas measuring 659 bighas and odd. The donee is shown as a cosharer and not as the owner of a miscellaneous property. There is obviously a joint liability upon him to pay the Government revenue for the entire 16 annas. Revenue has not been assessed separately on his plot. The Court of first instance has referred to the deposition of the vendor which was to the effect that a specific plot was transferred to him which was a share out of the share which had remained in his hands after the execution of the sale deed. No doubt the plot is a unit in the sense that it bears a specific khasra number and can be identified on the spot but according to the khewat it is not outside the 16 annas khalsa share.
2. We are accordingly of opinion that the view taken by the Courts below on this point was not correct. We, therefore, allow this appeal and setting aside the decree of the Courts below dismiss the suit with costs in the lower appellate Court and in this Court including fees on the higher scale. The defendants however, must pay the costs of the plaintiff in the first Court as at the time when the suit was instituted the plaintiff had undoubtedly a right of preemption.