JUDGMENT

Bennett, J - This second civil appeal arises out of a preemption suit which was brought by respondent 1, Ram Narain, against the appellant, Sri Nath and Durga Din, respondent 2, on the allegation that a deed whicb was executed by Durga Din in favour of Sri Nath on 5th June 1936 and which purported to be a perpetual lease was actually a sale deed. The suit was decreed by the Additional Civil Judge of Partabgarh and the decree was maintained in first appeal by the District Judge of Rao Bareli. The principal questions for consideration are, firstly, whether the deed is a sale deed or only a lease: and secondly whether the plaintiff has a preferential right to pre-empt the property.

2. I propose to take the second question first. Durga Din the executant of the deed is admittedly an under proprietor (pukhtadar) in the plots transferred. The transferee's case is that the deed is a lease, but he has also put forward an alternative plea that even if it is held to be a sale deed the plaintiff is not entitled to pre-empt because he, the appellant, must also be held to be a cosharer in the mohal. This alternative argument is based on a very similar deed which was executed in his favour in 1920 by one Sheo Raj. This deed also purported to be a lease, and entries in the revenue records were made on this basis. The appellant Sri Nath does not contend that it is a sale deed, but he argues that if the deed of 1936 is held to be a sale deed then the deed of 1920 should also be held to be a sale deed, in which case he became a cosharer in the mohal in 1920 occupying a position similar to that of the plaintiff, who would therefore have no preferential right. That is to say, it is contended on behalf of the appellant that he must succeed in either case, whether the deed of 1936 be held to be a lease or a sale deed.

3. The Munsif considered this argument but was of opinion that there was no force in it. The deed of 1920 (Ex. A-1) "will be deemed to be a lease granted by an under-proprietor," he observed, "so long as a competent Court does not hold otherwise." He added that he was not competent in the present case to hold that Ex. A-l is really a sale deed of under, proprietary rights. The District Judge concurred in this view, remarking that the deed of 1920 was not executed by Durga Din and that there had been no suit of pre-emption in respect of it. It is argued that the Courts below were not justified in evading the question in this way. It is not disputed that the language of Ex A-l executed in 1920 is very similar to that of Ex. 1, the deed executed in 1936. In fact there is rather more reason for considering the deed of 1920 a sale deed, because it conveys not only heritable, but also transferable rights, whereas the deed of 1986 conveys heritable but not transferable rights. This is the only material difference between the two deeds. The deed of 1920 was executed in respect of plot No. 143/3 of an acre of some 3 biswas 6 biswansis odd; the premium was Rs. 50 and the lease provided for payment of rent of 0-8-0 and malikana of 0-1-0. The deed of 1936 was executed in respect of two plots Nos. 217 and 245, of a total area of about 13 biswas. The premium was Rs. 200, annual rent Be. 1-7-6 and malikana 0-3-6.

4. If it were necessary to decide whether the deed of 1920 was a lease or a sale deed it would clearly be difficult to hold that the earlier deed is a lease and at the same time hold that the later deed was a sale deed. Had there been a definite allegation by the appellant that he was an under-proprietor on the basis of the earlier deed, it would have been necessary to examine the claim, unless it was held that he was estopped from putting it forward. This indeed is the main objection which has been advanced. The appellant has not prior to this case, I understand, ever suggested that it was other than a lease, and it is his main contention even now that both deeds are leases. Learned Counsel for the respondent contends that the appe