JUDGMENT Madeley, J. - This is a defendants' second appeal arising out of a pre-emption suit which was brought with respect to plot No. 140, area 2 1/2 biswas, in mahal Intizar Husain, village Ujaryaon, Lucknow. This village is divided into four mahals. On the 3rd September, 1938, Mohammad Yasin exchanged this plot in suit for a buffalo in favour of Mumtaz Husain and Kurban Ali. On the 4th September, 1939, Manzur Ali filed this suit for pre-emption on the allegation that the transaction was not in fact an exchange, but was a sale for Rs 40, of which Rs. 25 was paid in cash ?and a she-buffaloes worth Rs. 15 was given for the balance of the consideration. On the 6th October, 1939, the written statement was filed, and the chief point raised in it is that the plaintiff, not being a co- sharer in this mahal, has no right of pre- emption. The suit was decreed on the 15th January, 1940, on payment of Rs. 40. The appeal was dismissed on the 17th May, 1940. Now the vendees have come m second appeal to this Court. 2. The plot in dispute is situated in mahal Intizar Husain. The plaintiff is an under- proprietor in that mahal as is shown by Exh. 3 and the statement of P. W. 2 Salig Ram Patwari. The vendees are not co-sharers in this mahal, but they have proprietary rights in mahal Raza Husain and also in mahal Akbar Ali as is proved by Exhs. A-3 and A-4. 3. The plot sold was held by the vendor in superior proprietary right, and the vendees purchased full ownership in it. 4. The decision of the learned lower Court, so far as it is relevant to the present appeal, is contained in the penultimate paragraph of the judgment. Turning now to the question of plaintiff's preferential right, we find that although the plot in dispute is situate in proprietary mahal Intizar Husain, the plaintiff-respondent is a co-sharer in under-proprietary mahal Intizar Husain, vide Exh. 3. The vendees-appellants are co-sharers in another proprietary mahal known as mahal Nawab Raza Husain. This entry was made on the basis of a sale-deed dated 14-8-1939 (Vide Exh. A-4) and mutation was not made till December, 1939, The transaction in suit is dated 3-9-1938 when appellants had no title. 3. The vendees-appellants are co-sharers in another proprietary mahal known as mahal Nawab Raza Husain. This entry was made on the basis of a sale-deed dated 14-8-1939 (Vide Exh. A-4) and mutation was not made till December, 1939, The transaction in suit is dated 3-9-1938 when appellants had no title. Even if it be assumed that they had title, the plaintiff has a preferential right, as he is an under-proprietor of the same mahal as the land sold, and will therefore be entitled to claim as member of the village community. 5. This is the view of the law i which was held for a considerable period and is ex- pressed in Basdeo v. Indar Bikram Sihgh AIR 1930 Oudh 428. Where there are no co-sharers, which is the case when the whole mahal is sold, the under - proprietors have a right of preemption as being members of the village community. 6. The view now held, however, is that expressed by Mr. Young, Oudh Judicial Commissioner, Ashraf-un-nisa v. Parbhu Narain J.P.S.C. No. 140 (Jwala Prasad's Select Cases No. CXL dated 6th April 1888). In this judgment it was held that a proprietary village community is distinct from an under- proprietary village community and each such community is complete in itself. Further that, since Section 9 (4) of the Oudhs Laws Act of 1876 provides that where none of the first three classes exists or wishes to exercise his right, then if the property be under-proprietary, the superior proprietor has the right of pre-emption, but there is no similar provision in favour of under-proprietors when a portion of the superior tenure is sold, no such right exists to an under-proprietor. 7. In Drigbijae Singh v. Court of Wards (1902) 5 OC 266, Spankle, the Additional Judicial Commissioner, took the same view as had been taken by Young J. C, but Scott J. C. dissented from it with the result that the case had, under the rules then prevailing, to be referred to the High Court, N. W. P., for an expression of opinion. Their Lordships decided that an under-proprietor is a member of the village community to which a superior proprietor belongs and is therefore entitled to pre-empt where a portion of the superior tenure has been sold. Their Lordships decided that an under-proprietor is a member of the village community to which a superior proprietor belongs and is therefore entitled to pre-empt where a portion of the superior tenure has been sold. This view was followed in Nasfullah Khan v. Abdul Hamid (1925) 5 OWN 452 (Court of the Judicial Commissioner) and in Mohammad Sharif Khan v, Achhaibar Dubey (1930) 70 W N 99 and Basdeo v. Bit Indar Bikram Singh (1930) 7 OW N 835. The last of these decisions was taken in appeal to the Privy Council which went back to the view taken by Mr. Young, Judicial Commissioner, in 1888. The Privy Council case is printed in Raja Birendra Bikram Singh v. Brij Mohan Pandey (1934) 61 IA 225 : 4 A W R 611. It was held in this case that the village community mentioned in the third head of Section 9 of the Oudh Laws Act of 1876 consists either wholly of proprietors, or wholly of under-proprietors; that follows from Section 7 (a) which distinguishes between a proprietary and an under-proprietary village community, and a different construction would make the fourth head of Section 9 redundant. This decision was made in 1934 and has of course been followed as the leading case ever since by this Court. Counsel gives three cases in which it has been followed Manraj Kuar v. Basant Rai 1937 OWN 1217, Rant Prasad v. Ram Bharosey 1939 OA 190 : OWN 140 and Khadim Ali v. Jagannath 1940 OA 973 : VWR (CC) 428 : OW N 999. 8. In view of these decisions respondent's learned Counsel has to admit that the lower Courts have decided this case wrongly. He argues, however, that his client is also a co-sharer in one of the superior proprietary mahals in the village and as such is entitled to pre-empt. This argument raises a new question of fact never pleaded before or considered by the lower Courts. It cannot be raised in second appeal. 9. I therefore allow this appeal, set aside the decree of the lower appellate Court and dismissed the suit. The appellants will get' their costs in all Courts.