JUDGMENT

Piggott, J. - 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 i