JUDGMENT
1. On the 24th July 1919 one Rup Singh executed a sale-deed of his share in favour of Shib Lal in lieu of Rs. 2,000. The same day Shib Lal hypothecated the said share to third parties in lieu of Rs. 1,600. On the 30th March, 1920 the plaintiffs-respondents brought the suit out of which this appeal has arisen against Shib Lal for preemption. On the 23rd April, 1920 after the summonses to the defendants had been issued and served, one Ram Prasad, a co-sharer in the village, executed a deed of gift in favour of Shib Lal in respect of a very small amount of the property in the village. The vendee, Shib Lal, after obtaining the deed of gift it his favour resisted the claim of the plaintiffs-respondents on the ground among others that he (Shib Lal) was already a co-sharer in the village and, therefore, no suit of pre-emption was maintainable against him. The Court of first intance dismissed the claim. On appeal the learned District Judge set aside the decree of the first Court and holding that the deed of gift was fictitious, decreed the claim of the plaintiffs-respondents.
2. In Second Appeal before us it is contended that the finding of the learned Judge with regard to the character of the deed of gift is unsupported by any evidence and (sic) therefore, bad in law. It appears that the deed of gift when produced in the Court of first instance was not challenged on the ground that it was fictit ous; or fraudulent. Shib Lal gave evidence as to its due execution and the mutation of names in his favour on the basis of it. No evidence in rebuttal n behalf of the plaintiffs-respondents was given. The learned Judge considers that the circumstances of the execution of the deed of sale were such that it must have been fictitious. The circumstances that he relies upon are that the donor is of a different caste to the donee, that the deed of gift was given after the institution of the suit and the smallness of the property gifted. These circumstances would go to show that Shib Lal, the vendee, persuaded the donor to execute the deed of gift in order to defeat the plaintiffs-respondents' right of pre-emption. The circumstances would not show that the deed of gift was fictitious nor can the presumption of fictitiousness be based upon those circumstances. If the plaintiffs-respondents intended to challenge the deed of gift they should have said so in their pleadings and given some evidence in support of the allegations of fraud and fictitiousness against the character of the deed. In the absence of any pleadings challenging the deed it was not open to the lower. Appellate Court to ignore it. We, therefore, allow the appeal, set aside the decree of the lower Appellate Court and restore that of the first Court with costs throughout including fees in this Court on the higher scale, if any.