JUDGMENT
1. These four connected appeals arise out of four separate suits for pre-emption. On 18th March 1925, Mt. Rajkali Kunwar sold 2 pies share in. 10 villages to three vendees Raj Kumar, Paras Ram and Ram Raj Singh for Rs. 500 without any specification of shares. The suits were decreed by the first Court on the ground that Ram Raj was a stranger, and the plaintiffs had therefore a right to pre-empt the property against all the vendees. The learned District Judge has allowed the appeals and dismissed the suits. His judgment is based on the findings that Raj Kumar is a recorded co-sharer, that Paras Ram although not recorded is the brother of Kagji who is a recorded cosharer and with whom he forms a joint Hindu family, and that Ram Raj is an ex-proprietary tenant in this mahal though not in the villages in which the shares are situated.
2. It is not disputed before us that Raj Kumar is a recorded cosharer. We must also accept the finding of the Court below that Paras Ram being joint with his brother Kagji is also a proprietor though not recorded as such. The finding that Ram Raj is an ex-proprietary tenant is challenged before us.
3. No doubt Ram Raj is recorded in the revenue papers as ex-proprietary tenant in three out of 10 villages, all of which lie in one mahal. But a mere entry of the name is by no means conclusive. Nor does the fact that Ram Raj has occupied this land professedly as an ex-proprietary tenant for so many years necessarily confer upon him the ex-proprietary tenancy, inasmuch as such tenancy is the creation of the statute and cannot be acquired otherwise.
4. It appears that in 1906 a foreclosure decree was passed against Ram Raj and thereafter his proprietary interest passed out of his hands. The question whether Ram Raj became an ex-proprietary tenant on the passing of this foreclosure decree raises a point which we have to decide.
5. No doubt the opinion has prevailed in the Board of Revenue that ex-proprietary rights can be acquired on the foreclosure of a mortgage by conditional sale, This view was expressed as early as 1903 and has been followed in some cases since then, although it also appears that at least on one occasion in 1910 the two learned members differed on the point. Although the opinion of the Hon'ble Members of the Board is entitled to great weight we are not bound to follow their view. Nor can we accept that view on any principle of stare decisis. The learned Counsel for the parties have not been able to cite before us any case of this Court in which this point has been decided one way or the other. We accordingly propose to examine the language of Section 10 Agra Tenancy Act, under which an ex-proprietary tenancy can be created. It provides that every proprietor whose proprietary rights in a mahal or in any portion thereof, whether in any share therein or in any specific area thereof, are transferred on or after the commencement of this Act, either by sale in execution of a decree or order of a civil or revenue Court or by voluntary alienation otherwise than by gift or by exchange between the cosharers in the mahal shall become a tenant with the right of occupancy in his sir land etc. No doubt the word transfer' is used, but it is qualified by the expression 'by sale in execution of a decree or order or by voluntary alienation. Unless therefore the foreclosure can amount to a sale in execution of a decree or order or to a voluntary alienation, the section is inapplicable. We may point out that according to the language employed in the section it is impossible to hold that the word 'by' is understood before the word 'order'. We cannot therefore hold that any transfer by order of a civil or revenue Court would be sufficient. In our opinion the words 'decree' and 'order' are connected with each other by the conjunction 'or' and are part of one expression 'sale in execution of a decree or order etc. It follows therefore that there must either be a sale in execution of a decree or order, or there must be a voluntary alienation.
6. Before the Transfer of Property Act was passed there was good ground for holding that the proceedings in Court following upon a mortgage by conditional sale were a mere ministerial act and not a judicial act; Alexander John Forbes v. Amir-un-nissa Began, [1863-66] 10 M.I.A. 340. But after the passing of the Transfer of Property Act foreclosure proceedings which were governed by the Transfer of Property Act are now governed by the Code of Civil Procedure. Sale is defined in Section 54 as a transfer for a price paid or promised or part paid and part promised. Under Section 87, T.P. Act, which was in force in 1906 when the foreclosure decree was passed, on failure to deposit the mortgage money, the plaintiff mortgagee had to apply to the Court for an order that the defendant and all persons claiming through and under him be debarred absolutely of all rights to redeem the mortgaged property, and the Court had to pass such an order. On the passing of such an order the debt secured by the mortgage stood discharged. Thereafter the right to redeem the property was obviously extinguished. In view of these provisions it is impossible for us to hold that the foreclosure was in the nature of a sale in execution of a decree. Nor can we hold that the foreclosure amounted to a voluntary alienation by the mortgagor on the date when the foreclosure decree was passed. The proceedings in Court were not a mere ministerial act, but were the result of a preliminary decree passed by the Court. We are accordingly compelled to hold on the language of Section 10 as it stood that no ex-proprietary right accrued on the passing of such a foreclosure decree. It is admitted that no such rights accrued on the date when the mortgage by conditional sale was executed which had happened before 1903. We are glad to note that the legislature has intervened to cure this defect, and Section 14, New Agra Tenancy Act makes it clear that ex-proprietary rights do accrue even on the passing of a foreclosure decree.
7. In this view of the matter we must hold that Ram Raj Singh is not an ex-proprietary tenant. It is therefore unnecessary to consider whether his being an ex-proprietary tenant of only three out of ten villages would entitle him to resist the claim as regards the other villages also, on the ground that they all are in one mahal. The learned advocate for the respondents has lastly contended that the continuous possession of Ram Raj Singh, coupled with the non-payment of rent by him for over twelve years, has by adverse possession made him the proprietor of the land. No such specific plea was taken in the written statement and there was no specific issue on this point in the first Court. The judgment of the first Court also does not indicate that any such plea was urged before it. No doubt the point was taken for the first time in the grounds of appeal before the lower appellate Court, but that ground does not appear to have been pressed, and there is no reference to this plea in the judgment of the lower appellate Court. The plea was inconsistent with the other plea that Ram Raj was an ex-proprietary tenant, which was pressed and has been discussed at considerable length. As the plea raises a mixed question of law and fact we cannot allow it to be raised at this stage. It mu3t therefore be held that Ram Raj is neither an ex-proprietary tenant nor a cosharer in the mahal, and is accordingly a stranger. The other vendees having associated themselves with Ram Raj have lost their right to resist the plaintiff's claim for pre-emption. The appeals are accordingly allowed and the decrees of the lower appellate Court set aside and those of the first Court restored with costs in all Courts including in this Court fees on the higher scale.