JUDGMENT

Sulaiman, J. - This is a plaintiff's appeal arising out of a suit for pre-emption of a property situated in the district of Bundelkhand, which was sold on the 22nd December 1923. The vendor was a member of an agricultural tribe and so were the vendees, but the vendees were not cosharers in the village at all. The pre-emptors, on the other hand, are not members of the same agricultural tribe as the vendor, but are co-sharers not only in the mahal but in the very khata in which the share sold is situated. Before bringing their suit for pre-emption the plaintiffs did obtain the sanction of the Collector under the Bundelkhand Alienation of Land Act, Section 16 (A), as amended by Act 4 of 1915. The plaintiffs based their claim mainly on the custom recorded in the wajib-ul-arz of the village. The defendants contested the suit on the ground that the plaintiffs had no right to maintain the suit and that they had no preferential right as against them. The trial Court came to the conclusion that although "purchase," in view of the pronouncement of this Court in the case of Suraj Bhan v. Somwarpuri [1915] 37 All. 662, did not include "pre-emption," nevertheless "pre-emption" did include "purchase." It, therefore, came to the conclusion that the plaintiffs, having obtained the sanction of the Collector to pre-empt this property, were persons who were entitled to purchase it under the Bundelkhand Alienation of Land Act.

2. The learned District Judge has taken a contrary view. In his opinion the right of pre-emption is entirely distinct from the right of purchase, and is a mere right of substitution. He is also of opinion that the reference in Section 7, Agra Pre-emption Act, to the Bundelkhand Alienation of Land Act, 1903, does not necessarily imply a reference to that Act as amended in 1915. He is further of opinion that by implication Section 16 (A), Bundelkhand Alienation of Land Act, must be deemed to have been repealed by Section 7, Agra Pre-emption Act, although the said provision is not mentioned in the schedule of repealed Acts.

3. In my opinion there are two questions which have to be considered separately. The first is whether the Agra Pre-emption Act does confer a right on the present plaintiffs to maintain the suit and the second is whether, if it does not, it takes away any right which they might have had independently of it.

4. Section 7, Agra Pre-emption Act, provides that

nothing in that Act shall confer a right of pre-emption on any person who is under the Bundelkhand Alienation of Land Act, 1903, not entitled to purchase the property in dispute.

5. In my opinion this section was merely intended not to confer a right of pre-emption on any person who was not entitled to purchase property in Bundelkhand. It does not mean that the section takes away the right of pre-emption of a person who had the right under the old Act.

6. I am inclined to the view that the learned Judge is in error in thinking that a reference to the Bundelkhand Alienation of Land Act, 1903, does not imply a reference to the Act as amended in 1915. The Act was referred to by its short title, and one would imagine that the Act so referred to is the Act as amended up to date. It is, however, not necessary for the purposes of this appeal to express a final opinion on this point. Section 16 (A) dealt with the right to pre-empt whereas Section 7, Agra Pre-emption Act, speaks of "entitled to purchase." It is therefore not necessary to invoke the aid of the provisions of Section 16(A). The learned Judge has erred in thinking that Section 16(A) has by implication been repealed. That section conferred no substantive right on a pre-emptor where he had none before; it merely placed the obstacle of sanction in the way of his suing, when such right existed. Even if his right of pre-emption is destroyed it does not necessarily amount to a repeal of Section 16(A). I would not say that the Collector has no jurisdiction to grant such a sanction, but I would say that such