JUDGMENT

Dalal, J C - The lower Appellate Court has written a well-reasoned judgment on the subject of the preferential right of the vendees appellants and the plaintiff pre-emptor. The tenure which has been sold is a proprietary tenure of 3 annas and 6 pies. There is only one mahal in which the plaintiff pre-emptor is a co-sharer of proprietary rights and the vendees are under-proprietors. The trial Court held that the proprietors and under-proprietors have one entity and therefore came in Clause 2 of Section 9 of the Oudh Laws Act (XVIII of 1876) of co-sharers of the whole mahal. The Trial Court therefore directed lots to be drawn and the defendants being successful in the lottery, the plaintiff appealed to the lower Appellate Court. This Court in my opinion rightly pointed out that the property sold being proprietary tenure only the proprietors came within Clause 2 of co-sharers of the whole mahal and the under-proprietors came in Clause 3 of members of the village community. The lower Appellate Court erred to distinguish the ruling of Bakhha Singh v. Gaya Din (1914) 17 O.C. 339 of a single Judge of this Court.

2. In my opinion that ruling is not distinguishable, and if the same learned Judge had not expressed a different opinion later on in Gajadhar v. Raja Udit Narain Singh (1916) 3 O.L.J. 193 I would have referred this case to a Bench of two Judges. I am not in agreement with the observations of the learned Judge on page 341 of the report of 17 Oudh Cases. The learned Judge deduced from the decision in the case of Drigbijai Singh v. Court of Wards, Ramnagar Estate (1902) 5 O.C. 266 that according to judgment of a Bench of this Court proprietors and under-proprietors of one mahal formed one body and came within Clause 2. In my opinion such a conclusion is not justified by the Bench ruling of this Court. Both Judges agreed that when a proprietary tenure is sold an under-proprietor would not come within Clause 2 of co-sharers of the whole mahal. Disagreement between the two Judges was as to whether an under-proprietor under such circumstances came within the category of the member of a village community in the 3rd clause or not. The opinion of the Judges who favoured the view that the under-proprietor came within the 3rd clause was confirmed by the High Court of Allahabad on reference. In Bakha Singh v. Gaya Din (1914) 17 O.C. 339 the learned Judge stated that the decision in Drigbijai Singh v. Court of Wards, Ramnagar Estate (1902) 5 O.C. 266 did not deal explicitly with Clauses 1 and 2, but in my opinion it did and specifically held that an under-proprietor would not come within Clause 2 when a proprietary tenure was sold.

3. In the Bench case of Gajadhar v. Raja Udit Narain (1916) 3 O.L.J. 193 the learned Judge (now Mr. Justice Stuart) who delivered judgment in the case in Bakha Singh v. Gaya Din (1914) 17 O.C. 339 was one of the Judges of the Bench. In this case plots of proprietary tenure were sold as in the case before me. The plaintiff was a proprietor but not a co-sharer in the mahal so he did not fall under 2nd clause. The defendant was an under-proprietor in the same mahal, yet the Bench held that he did not fall under the 2nd clause as would have been the case if the principle enunciated in Bakha Singh v. Gaya Din (1914) 17 O.C. 339 had been followed but came within the 3rd clause. The under-proprietor defendant of that case was in the same position as the under-proprietor defendant of the present case, that is he was under-proprietor of the mahal in which the vended property was situated. The Bench held that he fell within the 3rd clause and not in the 2nd and therefore his rights of pre-emption were not superior to those of a proprietor of another mahal. I therefore uphold the lower Appellate Court's finding that the plaintiff has a preferential right of pre-emption.

4. Apparently by a slip the lower Appellate Court decreed possession on payment by the plaintiff of Rs. 440 instead of Rs. 800. That portion of th