JUDGMENT

1. This is a defendant's appeal arising out of a suit for preemption brought to pre-empt the property sold under a deed dated 29th September 1924 by Mahadeo to Phul Chand the defendant-appellant. The sale consideration mentioned in the deed was Rs. 12,201. The plaintiff alleged that he was a cosharer in the village and the defendant vendee was a stranger and that the true sale consideration was only Rs. 10,000. The suit was defended by the defendant on various grounds. In the first place it was denied that the plaintiff was a cosharer and it was pleaded that the alleged adoption set up by him was invalid. It was further pleaded that the defendant had become a cosharer in the mahal by virtue of a gift taken on 17th December 1924 and was entitled to defeat the claim. It was further pleaded that the Bundelkhand Alienation of Land Act was a bar to the present claim. The learned Subordinate Judge has found all the issues against the defendant and has decreed the claim, giving the plaintiff half of his costs from the defendant.

2. The defendant has appealed and the plaintiff has filed a cross objection only as to costs. The question of consideration is not now in dispute before us. The plaintiff had sought to meet the defence as to the invalidity of the adoption by setting up a custom under which a married man could be validly adopted. The finding of the Court below on this point is against the plaintiff. In the oral evidence led on behalf of the plaintiff some instances were sought to be established and it was stated that in his caste such adoptions are allowed. The evidence no doubt was meagre and the Court below has rejected it. We are not prepared to reverse that finding.

3. The learned Subordinate Judge seems to have thought, to quote his actual words, at all events he is a recorded co-sharer and entitled to pre-empt." In our opinion this view is not correct. The present case is governed by the Agra Pre-emption Act No. 2 of 1922 and the rulings under the old law are not applicable. A cosharer is defined in Section 4, Sub-clause (1), as meaning any person other than a petty proprietor entitled as proprietor to any share or part in a mahal or village whether his name is or is not recorded in the register of proprietors. The expression "entitled as proprietor" obviously means that he must possess proprietary interest in the mahal and not merely possession over a share in the mahal. It seems to us that merely possessory title would not make a person whose name is recorded in the khewat as cosharer entitled as proprietor to a share. The plaintiff therefore in order to succeed must show that he has got a proprietary interest in this mahal.

4. In the evidence the plaintiff's case was that he was duly adopted by the widow of Gobind Ram under authority from her husband. It is an admitted fact that he was about 21 or 23 years of age and was married and in fact had children alive at the time when he was adopted. The fact of adoption is fully proved and that finding has not been challenged before us. The plaintiff is a Marwari Brahmin and without proof of a custom which would allow such an adoption the plaintiff's adoption cannot be accepted as valid. The learned Subordinate Judge seems to think that the adoption having been an accomplished fact of about 30 years standing it should be accepted but mere lapse of time cannot cure the illegality of it. We are therefore constrained to hold that in spite of the fact that this adoption has remained unchallenged for such a long interval of time the plaintiff cannot claim proprietary title on its basis. It is also quite clear that the plaintiff had not acquired proprietary title by prescription when he brought the suit. Admittedly Mt. Kesar Kuar died on 27th November 1913 within 12 years of the suit and there could be no adverse possession against the reversioners whilst she was alive. Before the full period of 12 years expired the plaintiff had not become a proprietor by means of adverse pos