Bind Basni Prasad, J. - (1.) This is a defendant's appeal arising out of a pre-emption suit. The material facts are these :
(2.) On 2-7-1945, a deed which was ostensibly one of gift was executed by defendant 5 in favour of Ram Nihora, father of defendants 1 to 4. The plaintiff came with the allegation that the transaction was really one of sale and the deed was executed as one of gift to defeat the right of pre-emption. Both the lower Courts have concurrently held that the transaction was really one of sale. The trial Court, however, dismissed the suit on the ground that the land was a protected land and as no permission of the Assistant Collector in charge of the sub-division had been obtained under Section 24, U. P. Regulation of Agricultural Credit Act, 1940, the transaction could be treated only as a mortgage under Section 25 of the said Act. In appeal the learned District Judge took an opposite view. He remarked : "The right of pre-emption is nothing more and nothing less than a right of substitution of the pre-emptor for the vendee in the transaction and in the deed embodying that transaction and I do not think this right is at all affected by the provisions of the Act invoked by the learned Munsif. If the sale is legally invalid the pre-emptor would be subject to the consequences of absence of Collector's sanction for sale entitled to just as much as the original vendee and the vendee is not entitled to take shelter behind the Act which is intended for the benefit of owners of protected land and not transferees of such land from protected owners. Consideration of the question of sanction for alienation is beyond the scope of a pre-emption suit and all that is to be considered in such a suit is whether the transaction is a sale by a private treaty and the pre-emptor has a right of pre-emption and there is no obstacle to the enforcement of such right. Clause 1 of Section 25 does not say that a sale will cease to be a sale and be a mortgage if the sale has no sanction of the Collector behind it and its purport is that such sale will take effect as a mortgage."
(3.) I am unable to agree with the above view of the learned District Judge. The following facts are now undisputed in this Court. The land in dispute is protected land as defined in Sub-section (12) of Section 2. The transaction was really one of sale. No permission of the Assistant Collector in charge of the sub-division was obtained under Section 24 of the Act. Learned District Judge has incorrectly construed Section 25 of the Act. He has referred to Sub-section (1) only, but not to Sub-section (2) of that section. The section provides as follows : "25 (1) Where a permanent alienation of protected land has been made otherwise than in accordance with the provisions of this Act, it shall take effect as a mortgage in the form prescribed by Clause (a) of Sub-section (1) of Section 13. (2) In any suit or proceeding before a civil Court of competent jurisdiction relating to a permanent alienation of protected land made otherwise than in accordance with the provisions of this Act, in which the parties to such alienation or their successors-in-interest have been impleaded, the Court shall revise and alter the terms of such alienation so as to Substitute for it a mortgage in the form prescribed by Clause (a) of Sub-section (1) of Section 18 on such terms as the Court considers to be equitable and thereupon such mortgage shall take effect in supersession of such alienation.";