JUDGMENT Malik, J. - This is a Defendant vendees appeal in suit for pre-emption. 2. The Plaintiff Kailash Singh, brought a suit for pre-emption of a sale dated the 21st of March, 1940, by which the Defendants second party sold certain fractional shares in seven villages situate in Taluqa Jamuna to the Defendants first party. The Plaintiff's allegations were that he was a co-sharer in village Jamuan while the vendees were strangers. According to the plantiff there was a custom of pre-emption entered in the wajib-ul-an and be was entitled to claim pre-emption on the basis thereof. The price entered in the sale deed was Rs. 1,999 but the Plaintiff alleged that the correct sale consideration Was only Rs. 1,275 and he offered to preempt the sale on payment of Rs. 1,275 or of any amount which was deemed reasonable of the Court. 3. The defence was a denial of the Plaintiff's right to pre-empt on the ground that the Plaintiff was not a co-sharer and was not entitled to claim pre-emption. It was further alleged that the Plaintiff had consented to the sale in favour of the Defendants and was, therefore, estopped from claiming pre-emption of the property. It was also urged that the Defendants were co-sharers and were ex-proprietary tenants. Lastly it was contended that the sum of Rs. 1,999 was the proper sale consideration and had actually been paid by the vendees to the vendors. 4. The lower Court held in favour of the Plaintiff that he was a co-sharer and that the Defendants were neither ex-proprietary tenants nor had they any proprietary rights in the village. The lower Court, however, held in favour of the Defendants that the correct sale consideration was Rs. 1,999 and decreed the Plaintiff's suit for preemption on payment of that sum within three months of the date of the decree. 5. The Plaintiff has submitted to the decree, but two of the Defendants vendees, Baldeo Singh and Balmakund Singh, have come up in appeal to this Court and they challenge the whole decree and urge that the Plaintiff's suit should have been dismissed against all the Defendants. 6. Sir Tej Bahadur Sapru, learned Counsel for the Appellants, has argued only two points before us. 6. Sir Tej Bahadur Sapru, learned Counsel for the Appellants, has argued only two points before us. He has urged that the Defendants were exproprietary tenants and therefore a suit for pre-emption against the Defendants would not lie by reason of Section 9 of the Agra Pre-emption Act. The other point raised by him is that the Plaintiff refused to purchase the property sold and was therefore estopped from bringing the suit. Taking up the first point first, it has been argued on behalf of the Appellants that the ancestors of the Defendants first party were at one time owners of a fractional share in Taluqa Jamuan. It is their case that Anmol Singh, one of the sons of Jhingur Singh and the ancestor of the Defendants first party, had stood surety for his guru and when the debt was not paid by his guru, the creditor realised the amount by selling up the family property in Jamuan. The property was purchased at auction by one Janki Prasad. There is no clear evidence as to when this sale took place, but it is the case of the Appellant that it was long before the year 1885. Janki Prasad however did not get possession of 42 bighas, 7 biswas and 14 dhurs of land which was the sir land of the ancestors of the Defendants. Protacted litigations ensued and learned Counsel has mentioned that these litigations continued for about a quarter of a century. In the compromise entered into on the 27th of February, 1885, it is mentioned that several periods of limitation had expired since the auction sale. If a period of limitation is roughly taken to be about twelve years then several twelve years must have elapsed after the auction sale. Ultimately on the 27th of February, 1885, the parties enteted into a compromise in which it was settled that the ancestons of the Defendants first party would remain in possession of the fields, which were thirty five in number measuring 42 bighas 7 biswas and 14 dhurs, as tenants generation after generation on payment of an annual rental of Rs. 101 and this rent was not liable to enhancement nor were the Defendants liable to ejectment. It is by relying on this document that learned Counsel for the Appellants has urged that the Defendants are ex-proprietary tenants. 101 and this rent was not liable to enhancement nor were the Defendants liable to ejectment. It is by relying on this document that learned Counsel for the Appellants has urged that the Defendants are ex-proprietary tenants. The Defendants produced several witnesses to prove that they were ex-proprietary tenants and-learned Counsel placed great reliance on the fact that the Defendant's witnesses ware not cross-examined on the point that the Defendants ere ex-roprietary tenants; and not occupancy tenants. 7. We, however, fail to understand how the Defendants can claim to be ex-proprietary tenants., There is no doubt that the proprietary rights of the Defendants ancesrtors were sold at auction and were purchased by Lala Janki Prasad long before 1873. As a matter of fact there is a mention in the compromise dated 27th of February 1885 that ejectment proceedings, had been taken after the sale against the Defendants' ancestors u/s 78 of Act X of 1859 so the auction sale must have taken place before 1873 while Act X of 1859 was in force. It is admitted by counsel for both parties that there is no provision in the Tenancy Acts nor was ever there any provision under which ex-proprietary rights could be created by contract. Before 1873 there was no provision that a landlord after the sale of his proprietary rights would be entitled to remain in possession of his sir and khudkasht land as an ex-proprietary tenant. On the sale of the proprietary rights the right to actual possession also passed to the vendee and the land held as sir and khudkasht became the vendee's sir and khudkasht. 8. When the property was, therefore, sold at auction prior to the passing of Act XVIII of 1873 it is mentioned by the learned Civil Judge that the sale took place about 1857 but we can find no evidence to that effect the purchaser Janki Prasad had the right to take actual physical possession of the 42 bighas odd of land that was in the possession of the Defendant's ancestors as their sir. If the Defendants ancestors did not hand over possession of that land and continued to remain in possession they could not claim that they became ex-proprietary tenants. They were in possession either tenants of the auction purchaser, Janki Prasad, or were in adverse possession under a claim that they were owners of the 42 bighas odd. If the Defendants ancestors did not hand over possession of that land and continued to remain in possession they could not claim that they became ex-proprietary tenants. They were in possession either tenants of the auction purchaser, Janki Prasad, or were in adverse possession under a claim that they were owners of the 42 bighas odd. It appears, however, from the compromise dated the 27th of February, 1885, that the Defendants' ancestors claimed that they had remained in possession as tenants and it is mentioned in the compromise that the dispute was as regards the rent which was fixed by the compromise at the sum of Rs. 101. Ex-proprietary rights in sir and khudkasht were recognised for the first time by the North Western Provinces Rent Act XVIII of 1873 and paragraph 7 of that Act provides that Every person who may hereafter lose of part with his proprietary rights in any mahal shall have a right of occupancy in the land held by him as sir in such mahal at the date of such loss or parting, at a rent which shall be four annas in the rupee less than the prevailing rate payable by tenants-at-will for land of similar quality and with similar advantages...... 9. The sale having taken place prior to 1873, the sir land which bad remained in the possession of the Defendants, could not become their exprpprietary tenancy after the compromise of 1885 as there never was any provision for creating ex-proprietary tenancy by contract. Act XVIII of 1873 was repealed in the year 1881 by the North Western Provinces Rent Act (XII of 188l) and this was the Act which was in force on the date when the compromise was entered into in the year 1885. An ex-proprietary tenant is also defined in this Act, but oven under this Act the date of the sale is material and there is nothing in Section 7 of the Act which would entitle the Court to hold that it was possible to create ex-proprietary tenancy in land, the proprietary rights in which had been sold prior to the year 1873. In Act X of 1859 (to amend the law relating to the recovery of Rent in the Break dency of Fort William in Bengal) which was the Act applicable prior to the Act of 1873 we find a mention of only fixed rate tenants and occupancy tenants and there is no mention of ex-proprietary tenants. 10. Learned Counsel had, however, argued that the words "ex-proprietary tenants'' and "ex-proprietary tenancy'' in Section 9 of the Agra Pre-emption Act (XI of 1922) need not be read in the same sense as defined in the Rent Acts. When Act XI of 1922 was passed, the N W. P. Tenancy Act (II of 1901) was in force in these Provinces and an ex-proprietary tenant was defined in Section 10 of that Act. According to this definition, every proprietor, whose proprietary rights in a mahal or in any portion thereof, whether in any share therein, or in any specific area thereof, are transferred, on or after the commencement of this Act, either by sale in execution of a decree or order of a Civil or Revenue Court or by voluntary alienation, otherwise than by gift or by exchange between co sharers in the mahal, shall become a tenant with a right of occupancy in his sir land, and in the land which he has cultivated continuously for twelve years at the date of the transfer...... and further every such tenant, and every tenant having the same rights under the corresponding provision of Act XVIII of 1873, Act XII of 1881, or any other enactment for the time being in force, shall be called an ex proprietary tenant...... 11. Even according to this definition the sale in favour of the Defendants first party having taken place prior to 1873, they cannot claim to be ex-proprietary tenants. 12. The Agra Pre-emption Act deals with the pre-emption of village property, The words "ex-proprietary tenant" and ex-proprietary tenancy" are words of art and have a special meaning in these Provinces and are defined by the various Rent Acts. To our mind, the words must be interpreted to have the same meaning in the Pre-emption Act as in the Rent Acts. The words could not mean what learned Counsel for the Appellant has suggested, that an ex-proprietary tenant was a tenant who bad at one time been a proprietor. To our mind, the words must be interpreted to have the same meaning in the Pre-emption Act as in the Rent Acts. The words could not mean what learned Counsel for the Appellant has suggested, that an ex-proprietary tenant was a tenant who bad at one time been a proprietor. In that case a person who had at one time Held a share in a mahal, which share had passed out of his hands, could claim to resist a suit for per-emption merely on the ground that he was a tenant in the village, either occupancy, non accupancy or statutory or of any other kind. As we read Section 9 of the Agra Pre-emption Act, to our minds it is clear that what the Legislature intended was that person who had been a co-sharer and who was still holding some land in the village by virtue of the fact that he had been a co-sharer and was thorefore an ex-proprietary tenant as denned in the Rent Acts, should be given for this limited purpose the same position as any other co-sharer and should be able to resist a suit for pre-emption on the ground that he was not a stranger in the mahal. We, therefore, agree with the finding of the Court below that the Defendants were not ex-proprietary tenants nor were they in possession of any ex-proprietary tenancy. 13. As regards the plea of estoppel on the ground that the Plaintiff had refused to purchase the property, we may mention that no such plea was specifically taken in the written statement. In the written statement, paragraph 12, all that the Defendants had said was that the Plaintiff was fully aware of the sale in question because the negotiations had been carried on through the Plaintiff and his brother and then went on to allege that that Ram Gobind, the Plaintiff's brother had contributed a sum of Rs. 100 towards the sale consideration as the Defendants had run short of money. This statement of theirs was, however, denied by the Plaintiff. Ram Goind Singh came into the witness box and denied that negotiations for the sale had been carried on through him or that he had ever lent a sum of Rs. 100 for tbe purpchase of the property. This statement of theirs was, however, denied by the Plaintiff. Ram Goind Singh came into the witness box and denied that negotiations for the sale had been carried on through him or that he had ever lent a sum of Rs. 100 for tbe purpchase of the property. Great reliance was placed on the evidence of Suraj Nath Singh, a retired Deputy Collector, who was for several years special Magistrate at Ballia. He stated that during the pendency of the suit there was a panchayat with the object of settling this case out of Court. The attempt, however proved abortive. According to Suraj Nath Singh, the Plaintiff bad admitted at the panchayat that the vendors had gone to him for the sale of the property in dispute but he had told them that he had no interest in the said property which bad belonged at one time to the Defendants first set and the vendors should approach the Defendants' first set for the negotiation of the! sale. We find it very difficult to accept this evidence, specially as no such clear plea was taken it the written statement Moreover, as the learned judge has pointed out, if does not appear that the Plaintiff was approached with any definite proposal nor does it appear that any price was Mentioned to him We agree with the finding of the Court below that there is not sufficient evidence on the record which would justify us in holding that the Defendants bad purchased the property on the faith of the Plaintiff's refusal and that the Plaintiff's suit was barred by estoppel. 14. The result, therefore, is that this appeal must fail. 15. The lower Court gave the Plaintiff his full costs. The Plaintiff came into Court on the alienation that he was entitled to pre-empt the property on payment of Rs. 1,275 only. The Court below, however, held that the consideration mentioned in the sale deed of Rs. 1,959 was the proper sale consideration and that the Plaintiff could pre-empt the sale only on payment of Rs. 1,599. The Plaintiff has now accepted that the sale consideration was Rs. 1,999 and does not challenge that finding. 1,275 only. The Court below, however, held that the consideration mentioned in the sale deed of Rs. 1,959 was the proper sale consideration and that the Plaintiff could pre-empt the sale only on payment of Rs. 1,599. The Plaintiff has now accepted that the sale consideration was Rs. 1,999 and does not challenge that finding. The plaintiif having come into Court on a false allegation with the intention of pre-empting the property for loss than its two third value, we think that it was a case where the lower Court should have directed the parties to bear their own costs. We, therefore, modify the decree of the Court below to this extent that we direct that the Plaintiff will bear his own costs in the lower Court. With the above modification, we dismiss this appeal with costs.