V. Bhargava, J. - (1.) This special appeal arises out of a suit brought by the plaintiff respondent for pre-emption of a sale deed executed by defendants-respondent Nos. 2 and 3 in favour of the defendants-appellants. The sale deed in question related to land situate in village Gagwara. The plaintiff respondent is a resident of that village. In the revenue papers village Gagwara is noted as asl village with village Payalgaon as its laga village. The defendants appellants who were vendees in the sale deed are residents of this taga village Payalgaon. The plaintiff respondent claimed that being a resident of the asl village he had a right of pre-emption against the defendants appellants who were merely residents of the laga village though the defendants appellants were hissedars in the asl village Gagwara. The trial court at the first stage dismissed the suit holding that the plaintiff respondent had no preferential right to the sale and could not enforce a claim for pre-emption against the defendants appellants as the latter were residents of the laga village and were hissedars of the asl village. The first appellate court, on appeal against that judgment, framed an additional issue which had not been framed by the trial court, and in this issue the question that was raised was whether the two villages Gagwara and Payalgaon were held under one revenue engagement or not. The issue was remanded to the trial court for a finding under Or. 41, R. 25, C.P.C. On receipt of the finding on that issue the first appellate court then proceeded to finally decide the appeal. It was held that the two villages Gagwara and Payalgaon were not held under one revenue engagement and consequently the plaintiff respondent who was the resident of the asl village Gagwara had a preferential right to the sale and could claim pre-emption against defendants appellants who were residents of the laga village Payalgaon. Against this decision of the first appellate court the defendants appellants came up in appeal to this Court. That appeal was dismissed by a learned single Judge and consequently the appellants have come up in this special appeal.
(2.) Two points were urged by learned counsel for the appellants in support of this appeal. The first point urged was that the first appellate court committed an error of law in framing an issue as to whether villages Payalgaon and Gagwara were held under one revenue engagement and in remanding it for a finding under Or. 41, R. 25, C.P.C. when no such pleading was raised by the plaintiff respondent in the plaint. It appears to us that the learned counsel in putting forward this submission has completely misunderstood the legal position. In Stowell's land tenure system which also includes a description of the land tenure system in the district of Garhwal the custom of pre-emption has been dealt with. Under the chapter dealing with pre-emption Stowell also deals with the incidents of asl and laga villages. He has stated that:- "For the purposes of pre-emption the asl village and laga are one. A hissedar of laga village had no right of pre-emption against a purchaser, who is a hissedar of the asl village but not (before then) of the laga (Mr. Giles, officiating Commissioner, in Dat Ram v. Raghunathu (11th July 1891) . The converse would, of course, hold good also." It appears that, in the present case, in the plaint the plaintiff respondent had admitted that Payalgon was a laga village of the asl village Gagwara and learned counsel in making his submission before us relied on the proposition laid down by Stowell mentioned above that for the purposes of pre-emption the asl village and the laga village are one. According to him, since there was an admission that Payalgaon was a laga village of asl village Gagwara, the residents of both the villages would have equal rights in the matter of pre-emption of a sale so that the plaintiff respondent would not have a right to pre-empt a sale in which the vendees were the defendants appellants. The position seems to have been misunderstood by learned counsel because Stowell has not quite clearly explained when the equality of status of residents of an asl and a laga village arises in the matter of pre-emption. A Division Bench of this Court in Amla Nand v. Nandu, 22 ALJR 126 had to consider this question and clearly laid down the principle that equality in the matter of pre-emption between residents of an asl and laga village arises only if both the villages are held under one revenue engagement. That case also arose from the district of Garhwal like the present one and dealt with the custom of pre-emption as it prevailed in the district of Garhwal. The effect of that decision of the Division Bench is that even if two villages be related to each others as asl village and laga village, the residents of an asl village would have a preferential right of pre-emption against residents of a laga village in respect of land situate in asl village if the two villages are not held under one revenue engagement. Conversely the residents of a toga village would have a preferential right of pre-emption against residents of the asl village in respect of land situated in laga village if the two villages are not held under one revenue engagement. In case both the villages are held under one revenue engagement, the residents of both the asl and the toga village would have equality of status for purposes of preemption. In these circumstances, the mere admission by the plaintiff respondent in the plaint that Payalgaon was the laga village of the asl village Gagwara could not lead to any inference that, in respect of land situated in Gagwara, the residents of the logo village Payalgaon would have equal right of pre-emption with the residents of the asl village Gagwara. To claim equality it was incumbent on the defendants appellants to plead that the two villages Payalgaon and Gagwara were held under one revenue engagement. The mere admission of the two villages being related to each other as asl and laga villages contained in the plaint did rot, therefore, by itself justify the claim of the defendants appellants that they had equality of status. It was for the defendants appellants to plead that besides being related as asl and laga villages these two villages were also held under one revenue engagement. In these circumstances, it is clear that, when the first appellate court framed an issue as to whether these two villages were held under one revenue engagement or not, all that the court did was to fill up a gap in the pleadings of the defendants appellants themselves and in no way proceeded against any admission made by the plaintiff respondent in his plaint. It is, therefore, surprising that the grievance should have come from the defendants appellants themselves against the framing of this issue and the remand of the suit for decision of that issue. Though it is true that the first appellate court framed the issue and remanded it for a finding under Or. 41, R. 25 of the C.P.C. at the request of the plaintiff respondent but in fact that request should have come from the defendants appellants themselves. So far as the plaint was concerned, even though it contained an admission that the two villages were related to each other as asl and laga villages, there was the further claim that the plaintiff respondent as resident of the asl village was entitled to a preferential right of pre-emption against the defendants appellants who were residents of the laga village. The first appellate court in these circumstances, in our opinion, only acted in the interest of justice in framing the issue and in remanding it for a finding to the trial court and, in any case, the framing of that issue was only to fill up a gap in the pleadings of the defendants appellants and was in no way a favour to the plaintiff-respondents. This grievance raised in this special appeal has, there-fore, no force.
(3.) The second point urged by learned counsel was that the finding recorded by the appellate court that the two villages were not held under one revenue engagement was without material and without any evidence so that an error of law was committed by that court in recording that finding. The question whether these two villages Gagwara and Payalgaon were held under one revenue engagement was essentially a question of fact. The learned Judge of the first appellate court in his judgment has mentioned the material on the basis of which he came to the finding that they were not held under one revenue engagement. He took notice of the fact that initially at the time of Batten settlement and Backett settlement these two villages were shown as being under one revenue engagement. In the Batten settlement there was only one phant and one malguzar for Gagwara and its laga villages including village Payalgaon. The same was the case in the Backett settlement. In the Backett settlement the hukumbandi, or the agreement between the Government and the malguzar, which was on the file, showed that there was only one engagement for the revenue of Gagwara and Payalgaon. He, however, found that the situation changed completely in the Pauw settlement because in that settlement there were separate phants and separate mauntakhibs were also prepared for these two villages Gagwara and Payalgaon. The revenue was also separately assessed on them. That was repeated in the latest settlement and in addition, the boundaries of the two villages were marked and described separately. The learned Judge also mentioned that neither in the Pauw settlement nor in the latest settlement was any hukumbandi prepared. The learned counsel for the appellants has urged before us that in making this statement the learned Judge of the first appellate court went wrong because copies of the hukumbandis were on the file. Learned counsel produced before us certified copies of the hukumbandis which according to him were on the file. Having looked at those hukumbandis, we find that they do not in any way deal with the question of there being separate or one engagement in respect of revenue in regard to those two villages. The hukumbandis that were produced before us only deal with certain other customs in these villages. It seems to us that the learned Judge of the first appellate court in observing that no hukumbandi was prepared really intended to say that there were no hukumbandis dealing with the question of revenue engagement in these two villages. On the other hand preparation of two separate phants was itself evidence leading to the inference that there were separate engagements between the Government and the malguzar. The learned Judge also noted the fact that at the time of these settlements even the hissedars were not common to the two villages because there were some hissedars in Payalgaon who were not co-sharers in Gagwara. These circumstances in our opinion did provide sufficient material for drawing the inference of fact that the two villages were not held under one revenue engagement. It has already been held by the Supreme Court that an inference of fact from other primary facts proved remains a question of fact and does not become a question of law unless in drawing that inference some principle of law has to be applied. In this case, the inference which the learned Judge drew from the evidence which was before him that the two villages were not held under one revenue engagement was an inference of fact drawn from the evidence of fact and no principle of law arose in drawing that inference. The finding of the lower appellate court that the two villages were not held under one revenue engagement was, therefore, a finding of fact which became final and was not vitiated by any error of law.;