RAM DHARI MISIR Vs. MANGAL MISIR

JUDGEMENT

(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 :

(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 :