JUDGMENT Sulaiman, J.
1. This is a defendants appeal arising out of a suit for pre-emption. The vendor, Gaya, was a zemindar of patti Subhao. He executed two sale deeds in favour of defendants Nos. 2 and 3 and defendant No. 7, respectively. Under tie first sale deed he purported to sell his 2 annas and 8-pies share in the patti, and under the second a number of plots specified therein as fixed-rate holdings. The defendants Nos. 2 and 3 are the Sons of Sheo Nandan, defendant No. 1, and defendant No. 7 is his wife. The plaintiffs brought this suit to pre-empt both these transfers on the allegation that they together constituted one transaction in favour of the defendant's family. There was also some dispute as to the actual sale consideration. The plaintiffs alleged that they were co-sharers in the same patti with the vendor and under the custom prevailing in the mahal they were entitled to pre-empt the sale.
2. On behalf of the defendants the existence of the custom of pre-emption was denied, it was pleaded that the sale considerations were truly entered in the two documents and that these were separate transactions, It was further pleaded that the plaintiffs were precluded under the provisions of Section 9 of the Agra Tenancy Act from saying that the plots were not fixed-rate holdings but zemindari properties, and that there being no custom for, pre-emption with respect to tenancy holdings the claim with respect to these plots was not maintainable.
3. The Court of first instance decreed the claim holding that there was a custom pf pre-emption in the village, that the fixed rate tenancies had become properties interests and were liable to pre-emption appeal the learned District Judge accepted the findings of the Court of first instance and dismissed the appeal.
4. As there has been some dispute with regard to the constitution of this mahal, I think it desirable to mention the following facts.
5. In the Settlement of 1881 the plots mentioned in the plaint were recorded as fixed-rate holdings of Subhao's family. In the year 1893 there was a perfect partition of the entire village which was divided into three distinct mahals. Mahal Bishen Dyal consisted of 5 pattis, 3 of which were real (asli) pattis, the other 2 being shamilat pattis. The evidence of the Patwari, supported by the entries in the he at and the khatauni, which are not contradicted by any other evidence makes it quite clear that all the fixed-rate holdings belonging to Subhao's family were at the partition placed in patti Subhao of which Subhao's family was the sole proprietor. The effect of the partition, therefore, was that the fixed-rate tenants ceased to be the tenants of the other co-parceners of the mahal, and all their fixed-rate holdings were included in their own patti. The legal consequence of such a change obviously was to bring about a merger, a complete absorption of the fixed-rate tenancies into zemindari rights. After the partition of 1893, therefore, the can be no doubt that, in the eye of the law, the fixed-rate holdings ceased to exist. The rights and interests of the owners were only those of ordinary proprietors. It is admitted, however, that in the that khatauni these plots continued to be recorded as fixed rate holdings.
6. The contention on behalf of the defendant-appellant is that it is not open to the plaintiffs to show by any evidence that these plots are other than fixed-rate holdings. Strong reliance is placed on Section 9 of the Agra Tenancy Act and the argument is that, so long as the Revenue papers have not been actually corrected the presumption is absolutely conslusive that these plots are fixed-rate holdings to the present day. Section 9 in terms is not confined to a dispute between landlord and tenant. The words as against a landlord are not there at all. The section is quite general in its scope and is applicable to all cases where a dispute as to the nature of the tenancy arises, no matter whether that dispute arises against a landlord or not.
7. It is conceivable that such a dispute may arise in proceedings to which the landlord is not at all a party. Under Section 20(1) of the Tenancy Act the interest of a permanent tenure-holder of fixed-rate tenant is heritable according to his personal law. Where other tenancies devolve according to the rule laid down in Section 22. A dispute may very well arise between the rival heirs of a deceased tenant and the question of be true nature of the tenancy may have to be decided in a litigation to which the landlord is no party. Is it open to either set of these heirs to go behind the entry at the last revision of records and adduce evidence to the contrary? In my judgment the legislature intended that this should not be allowed. The presumption under Section 9 is conclusive. The only way to displace it is by producing a judicial decision in proceedings instituted before the Act, and in no other way. From this it does not, however, follow that there is a conclusive presumption under the section for all time to come that the true nature of the lands is that of a fixed-rate tenancy. The presumption can only be that the lands were fixed-rate tenancies at the time when the entry was made. There is no presumption that the nature of those lands can never in future be altered.
8. There are many ways in which fixed-rate tenancies may come to an end, e.g., by surrender, ejectment, express agreement with the landlord, or, as in this case, by merger. I cannot, therefore, see how one can shut out evidence directed to show that a new position has risen since the Settlement. It has been suggested in argument that, so long as the entries in the Revenue papers remain uncorrected, the presumption continues. But how can a correction be ever made after the coming into force of the Act? Whenever the Courts are moved for making, the correction, the presumption, according to the appellant's contention, must stand in the way.
The Full Befell, in the case of Jainaih Pathak v. Kalka Upadhya 13 Ind. Cas. 643 : 34 A. 285 : 9 A.L.J. 238 did not mean to lay down anything more than that the entry mentioned in Section 9 is conclusive proof only as to the nature of the tenancy and not as to the title to it; or, to be more exact, whether the person recorded was a permanent tenure-holder or a fixed-rate tenant or not.
9. I must presume conclusively that in 1881 these plots were fixed-rate holdings, but I am of opinion, that there is nothing in Section 9 which precludes a Court from going into the question whether the effect of subsequent event has or has rot been to alter its nature. As I have already stated, the effect of tie proprieties on 1803, was to bring about a complete merger by which the fixed to hold is were destroyed and absorbed into zemindari rights. After that the owners became fall proprietors. This is the finding of the learned District fudge, which, in my opinion, is fatal to this appeal. The plaintiffs clearly had a right to pre-empt the sale, as the custom of preemption exists in, the village, and the property sold was a proprietary interest in the mahal. I would, therefore, dismiss the appeal.
Lindsay, J.
10. I agree that this appeal should be dismissed, but I wish to add a few words regarding the arguments based upon Section 9 of the Tenancy Act. In my opinion that section could not be used in the present case for the purpose of defeating the claim of the plaintiff pre-emptor. It seems to me that the scope of Section 9 is strictly limited and that the rule laid down in that section can only be applied in litigation arising between a landlord and tenant when the matter in issue between the landlord and tenant is the nature of a tenancy.
11. The Tenancy Act only professes to regulate litigation regarding agricultural tenancies and in that view it seems to me we ought to limit the scope of a section such as Section 9 and ought not to assume that it was the intention of the legislature to lay down a rule which should be of universal application so as to govern the legal relations of parsons who do not stand inter se as landlord and tenant.
12. The Full Bench case of this Court reported as Jainath Pathak v. Kalha Upadhya 13 Ind.Cas. 643 : 34 A. 285 : 9 A.L.J. 238 seems to me to be the clearest possible authority for this view. That ruling, to my mind, lays down that Section 9 can only be had recourse to in cases of dispute between a zemindar and his tenant as to the nature of the tenancy and the section was framed for the purpose of providing a rule of evidence which should govern the decision of such cases. It is clearly laid down in the ruling in question that the entry mentioned in Section 9 is conclusive proof only as to the nature of the tenancy. In the present case no question of the nature of tenancy arises between a landlord and his tenant. The plaintiff does not stand in the relation of landlord to the defendant-appellant who is the purchaser of this property. I hold, therefore, that Section 9 could not be applied to the facts of the present case in order to show that the plaintiff had no right of pre-emption and that the property was still a fixed-rate tenancy and not the Zemindari property of the person who sold it.