JUDGMENT Henderson, J. - This appeal is directed against an order of the District Judge dismissing an appeal from an order of the Munsif allowing pre-emption to the Opposite Parties. The appeal is clearly incompetent; but inasmuch as the only point pressed in support of it is equally available in revision, I shall deal with the matter in revision. The case of the Appellants is that the Opposite Parties were not entitled to pre-empt. The argument proceeds upon the supposition that the holding in question is an under-raiyati and under-raiyats are not included in sec. 26 of the Bengal Tenancy Act. That section is in the chapter which deals with raiyats. 2. Both the Courts below held that an under-raiyat is given the right of preemption under the provisions of sec. 48G of the Bengal Tenancy Act. This argument will certainly be available in cases of pre-emption under the old section. In the present case the new section applies and the right of preemption is conferred upon the co-sharer tenants. 3. The Courts below ignored the words "as regards his immediate landlord" altogether. The present right of preemption has nothing to do with the relationship of landlord and tenant and cannot arise between an under-raiyat and his immediate landlord. If this right of pre-emption is available to an under-raiyat, the limiting words have no meaning. As far as I can see, an under-raiyat would be exactly the same as a raiyat in every respect. 4. That, however, is not enough to dispose of the matter. The contention of the Respondents is that they are raiyats. This point has not been decided by either of the Courts below. The learned Judge merely remarks that if the Respondents are raiyats, the objection of the Appellants is frivolous. It does not appear that either side took the trouble of adducing proper evidence on the point. The burden, however of showing that they are raiyats lies upon the Respondents who are asserting their right to pre-empt. I accordingly set aside the order of the lower Appellate Court and direct him to decide whether the Respondents are raiyats. If he decides this in the affirmative, he will dismiss the appeal. Both sides will be at liberty to adduce evidence. I accordingly set aside the order of the lower Appellate Court and direct him to decide whether the Respondents are raiyats. If he decides this in the affirmative, he will dismiss the appeal. Both sides will be at liberty to adduce evidence. In view of the fact that the Appellants did not adopt the proper remedy in this Court and that they failed to show that the application for pre-emption ought to be dismissed, the Appellants will pay the costs of the Respondent in this Court. Hearing-fee is assessed at one gold mohur.