JUDGMENT

Almond, J C - In this case Mir Nawaz Khan, who is an Afridi, brought a suit to pre-empt the sale of a piece of land in the village of Budhu, which had been sold by Mirza Fazal Ilahi to Syed Mir Haidar Shah. Arrfong the issues, which were framed, were the following:

(2) Whether the plaintiff was an agriculturist within the meaning and for the purposes of Section 14, Pre-emption Act, and Section 3, Land Alienation Act?

(3) In case of an affirmative finding on issue 2, whether the plaintiff had a superior pre-emptive right?

2. These are only two issues with which we are concerned in this further appeal. The trial Judge found that the plaintiff being an Afridi was a Pathan which was a notified tribe under Land Alienation Act and that he owned land both in the village of Sherkira and also in the village of Budhu at the time this sale took place. He, therefore, held both these issues in favour of the plaintiff, for the defendant-vendee was not an owner in the village of Budhu. The vendee appealed to the District Judge where he contended that an Afridi was not a Pathan within the meaning of the notification under the Alienation of Land Act. The Additional Judge relying on various orders which had been promulgated by various Deputy Commissioners of Peshawar came to the conclusion that an Afridi was not a Pathan although he admitted that the order of one Deputy Commissioner, namely, Major Reilly, was to the effect that if an Afridi owned land in the Peshawar District then he was a statutory agriculturist. He, therefore, dismissed the plaintiff's suit, and the plaintiff has presented this further appeal.

3. It has been contended by learned Counsel that an Afridi is a Pathan and if he owns; land in the Peshawar District then he is a member of an agricultural tribe within the meaning of Section 14, Pre-emption Act, read with the definition in Section 3. learned Counsel for the respondent-vendee has sought to maintain the finding of the District Judge not only on the ground which was relied upon by the District Judge but also on two other grounds, namely that in order to be a member of an agricultural tribe a man must have held land or have been residing in the district when the notification declaring what tribes are agricultural tribes was issued by the Provincial Government in 1908. He has also contended that as the previous acquisitions in this district by the plaintiff were without the consent of the Deputy Commissioner, they are, therefore, totally void, and the plaintiff is not even now an owner in the district. He was also prepared to contend that even if it was held that the plaintiff was a member of an agricultural tribe he had not a superior right of pre-emption as he did not own any land in the village of Budhu which would give him this right. On the latter point, however, the evidence of the patwari is unrebutted. He says that the plaintiff is an owner in village Budhu and the District Judge has referred to a mutation another file showing that he became an owner there by a purchase in 1938. As regards the question of whether an Afridi is a Pathan, learned Counsel for the respondents has again referred to the various orders passed from time to time by different Deputy Commissioners. Learned Counsel for the appellant, on the other hand, has referred to page 126 of the Gazetteer of the Peshawar District 1897-98. In that Gazetteer Afridis have been classified as a sub-division of Pathans and they were so classified on the basis of the census report of 1891. Furthermore, a reference to page 55 of the same publication will show that the Afridis who settled in the Khyber hills were considered historically as a section of Pathans. In view of this official publication by Government, we must hold that an Afridi is a Pathan. The argument of learned Counsel for the respondents that the plaintiff if he is to be considered a member of an agricultural tribe, must have been a holder of land in 1908 when the relevant notification was issu