JUDGMENT B. Upadhya, J. - These three connected appeals are by Plaintiffs and arise out of suits for redemption. 2. The Plaintiffs executed two deeds of exchange and one deed of gift in 1945. The Defendant-Respondents filed thereafter three suits for preemption alleging that the alienations made were sales and not deeds of exchange or gift as they apparently appeared to be. These suits for preemption were decreed in the Defendants' favour. The present suits have been instituted by the Plaintiffs, who were the original transferors, on the allegations that under the provisions of the U.P. Regulation of Agricultural credit Act, 1940, the Transactions which were held to be sales were permanent alienations within the meaning of that statute and could be given effect to only as mortgages. Redemption is now claimed of those mortgages. 3. The three transactions were all dated 13-4-1945. One was a deed of exchange valued at Rs. 100 and is now the subject matter of regulation in suit No. 258 of 1947. The other transaction was again a deed of exchange valued at Rs. 50 and is the subject matter of suit No. 259 of 1947. The third transaction was a deed of gift valued at Rs. 50 and became the subject matter of suit No. 349 of 1947. In the preemption suits that were filed all these transactions were held to be sales for the amounts mentioned above respectively. The Plaintiffs in the suits giving rise to these appeals have alleged that the transfers related to protected land and had been made without any permission under the U.P. Regulation of Agricultural Credit Act, that they should be given effect to as mortgages under the provisions of that statute and that redemption should be ordered in their favour on payment of the amounts of Rs. 100, Rs. 50 and (sic)e the amounts for which (sic) spec(sic) (sic)fers were made. The suits cont(sic) on various grounds and the (sic)nt raise in the defence which has now survived and comes up for decision in these appeals is that the transferors Plaintiffs were parties to the pre-emption suits and in their defence they ought to have raised the plea that the transfers, even if sales, were only mortgages in effect and could not be the basis of the suits for pre-emption. The trial Court did not accept the contention that the Plaintiffs' suits were barred by ras judicata and decreed the suits. On appeal, however, the lower appellate court while affirming the other findings of the trial Court held that the Plaintiffs have omitted to raise the plea relating to the effect of the U.P. Regulation of Agricultural Credit Act could not now claim the benefits of that statute and the suits for redemption were barred u/s 11, Explanation IV, of the Code of Civil Procedure. 4. The short question that calls for determination in these cases is as to whether the transferors-Defendants in the pre-emption suits might and ought to have raised the plea relating to the effect of the U.P. Regulation of Agricultural Credit Act in the pre-emption suits. They were suits in which the pre-emptors claimed to be entitled to be substituted in place of the transferees in enforcement of their rights as pre-emptors and on the footing that the three transactions were really sales and not deeds of exchange or gift as they ostensibly appeared to be. The defence taken was that the apparent nature of the transactions was their real nature and they were not sales but deeds of exchange and gift. The court below has taken the view that it was open to the transferors-Defendants in those cases to raise in defence the plea that being permanent alienations made without permission under the U.P. Regulation of Agricultural Credit Act the transactions could take effect only as mortgages and as such no claim for pre-emption could be made. In finding that the Plaintiffs' suits are barred by res judicata the court further appears to hold that the Defendants ought to have raised this plea. It appears necessary to consider some provisions of the U.P. Regulation of Agricultural Credit Act. Section 2(9) defines "permanent alienation" as 'a transfer by sale, exchange or gift' but the words, according to the Act, do not include 'a transfer by gift for a charitable purpose or a transfer by will'. Section 25 reads as follows: 1. Where a permanent alienation of protected land has been made otherwise than in accordance with the provisions of this Act, it shall take effect as a mortgage in the form prescribed by Clause (a) of Sub-section (1) of Section 13. 2. Section 25 reads as follows: 1. Where a permanent alienation of protected land has been made otherwise than in accordance with the provisions of this Act, it shall take effect as a mortgage in the form prescribed by Clause (a) of Sub-section (1) of Section 13. 2. In any suit or proceeding before a Civil court of competent jurisdiction relating to a permanent alienation of protected land made otherwise than in accordance with the provisions of this Act, in which the parties to such alienation or their successors in interest have been impleaded, the court shall revise and alter the terms of such alienation so as to substitute for it a mortgage in the form prescribed by Clause (a) of Sub-section (1) of Section 13 on such terms as the court considers to be equitable and thereupon such mortgage shall take effect in supersession of such alienation: Provided that a decision of a revenue court made in exercise of the powers conferred by Section 26 shall, in so far as it relates to the terms of the mortgage to which such court has decided that the alliance is equitably entitled, be conclusive as between the parties to the alienation and their successors in interest, and the propriety of such terms shall not be questioned in any court except by way of appeal or revision as provided in Section 30. 3. An appeal shall lie from an order made under Sub-section (2) as from an order under the provisions of the Code of Civil Procedure, 1908. 3. Another provision that may have some bearing in construing the effect of Section 25 is the section immediately following which reads as under: 1. If in the course of proceedings under Sections. 34 and 35 of the U.P. Land Revenue Act, 1901, the tahsildar after making a summary inquiry, has reason to believe that a permanent alienation of protected land has been made otherwise than in accordance with the provisions of this Act, he shall, not withstanding anything contained in Section 35 of the U.P. Land Revenue Act, 1901, refer the case to the Assistant Collector in charge of the Sub-Division. 2. 2. If the Assistant Collector finds that a permanent alienation of protected land has been made otherwise than in accordance with the provisions of this Act, he shall order that such alienation shall take effect as a mortgage in the form prescribed by Clause (a) of Sub-section (1) of Section 13 on such terms as he may consider to be equitable in the circumstances of the case, and shall cause an entry to be made in the record of rights accordingly. Provided that the Assistant Collector may, on the application of the alienor, proceed to deal with the case, in so far as it affects protected land, as if an application has been made u/s 24 and may grant permission, under the provisions of that section and such permission, if granted, shall be deemed to have been given before the alienation was made. 3. An order passed under this section shall not affect any question of title or any question relating o reversionary right or right of pre-emption. 4. Section 25(1) says that in the case of a permanent alienation of protected land made otherwise than in accordance with the provisions of the Act, the permanent alienation 'shall take effect as a mortgage in the form prescribed by Clause (a) of Sub-section (1) of Section 16. Section 25(2) further says that in any suit or proceeding in a Civil Court of competent jurisdiction relating to a permanent alienation of protected land 'the court shall revise and alter the terms of such alienation so as to substitute for it a mortgage in the form prescribed by Clause (a) of Sub-section (1) of Section 13'. These expressions make it clear that in order to attract the operation of this statute a transaction must initially take the form of a permanent alienation-a sale, a gift or an exchange. If a transaction is not one of these, the Act will not come into play at all. The subsequent provisions of he Act which lay down how the permanent alienation is to be given effect to only deal with the effect of the operation of the Act. If a transaction is a mortgage initially, the provisions of this Act are not at all attracted. The three transactions in dispute therefore must be either sales or deeds of exchange or gift so that the advantages provided by this statute may be available. If a transaction is a mortgage initially, the provisions of this Act are not at all attracted. The three transactions in dispute therefore must be either sales or deeds of exchange or gift so that the advantages provided by this statute may be available. This statute does not lay down that the transactions themselves will in law become mortgages initially. In the preemption suits the Plaintiffs based their claim on the allegation that the transactions were sales. The court deciding the pre-emption suits held that these transactions were sales. In the pre-emption suits therefore no defence could have been taken under the provisions of this Act to assail the real character of the original transactions. I fail to see how the Defendants could have asserted that the transactions were mortgages. The benefits therefore available under the provisions of this statute could not be raised in defence at all in the suits for pre-emption. In fact, they were evidently irrelevant to the issues then involved in the pre-emption cases. A glance at Sub-section (3) of Section 26 would show that if a dispute is not raised by the parties and a tahsildar has reason to believe that a permanent alienation of protected land has been made otherwise then in accordance with the provisions of the Act, he is required by law to take certain action. The Assistant Collector to whom the matter should go according to Sub-section (1) would act under Sub-section (2) of Section 26 and order that such alienation should take effect as a mortgage in the form prescribed. These provisions, however, according to Sub-section (3), will not affect any question of title or any question relating to reversionary right or right of pre-emption. The idea is that the questions that may be based on the initial character of the transactions will not be affected by the provisions relating to the effect of the transactions in view of the provisions of this Act. A right of pre-emption is founded on a transaction as it originally stands. If the original character of a transaction was that of a sale, a pre-emptor gets a right which is enforceable. The fact that under a particular statute a transaction is not to be given effect to as a sale but as a mortgage does not defeat or take away the rights of pre-emptor. If the original character of a transaction was that of a sale, a pre-emptor gets a right which is enforceable. The fact that under a particular statute a transaction is not to be given effect to as a sale but as a mortgage does not defeat or take away the rights of pre-emptor. A right of pre emption may or may not be enforced, and when coming forward to seek the assistance of court to enforce their right of pre-emption the Plaintiffs may be deemed to be alive to the fact, that while the transactions were really sales, the effect that the law permitted to be given to them was only that of mortgages. The Plaintiffs in the pre-emption suits must be presumed to know the State of law and in seeking to enforce the rights of pre-emption they cannot be held to have assumed, or, at any rate, they had no reason to assume, that this Act would not be given effect to and that simply because the right of pre-emption has been exercised in respect of those sales the provisions of this statute would become inoperative. 5. In the light of the above observations, I am of opinion that the court below was not right in taking the view that the Plaintiffs' suits were barred by res-judicata. 6. Learned Counsel informs me that there is no dispute that the land in question is protected land and that the U.P. Regulation of Agricultural Credit Act is applicable to these cases. The Plaintiffs have offered to pay the entire amounts of Rs. 100, Rs. 50 and Rs. 50 in respect of the three transactions in question and there is therefore no dispute relating to the amount to be paid for redemption. 7. The questions that may have to be considered now are: (1) Whether the Plaintiffs are entitled to redeem immediately ? and (2) What is the effect of the UPZA and LR Act on these Cases? 8. The appeals are allowed and the decrees of the lower appellate Court are set aside. The three cases are sent back to the lower appellate court for a fresh decision in the light of the above observations and after considering whether the Plaintiffs are entitled to redeem immediately and what, if any, is the effect of the UPZA and LR Act on these cases. The Appellants shall have costs of these appeals. The three cases are sent back to the lower appellate court for a fresh decision in the light of the above observations and after considering whether the Plaintiffs are entitled to redeem immediately and what, if any, is the effect of the UPZA and LR Act on these cases. The Appellants shall have costs of these appeals. Costs in the cases shall abide the result(sic). 9. Learned Counsel for the Respondents mentioned that the Court below might be directed to allow the parties to adduce evidence. It is not possible for me to say whether any evidence will be necessary or not and it will be a matter within the discretion of the lower appellate court to allow such evidence as the court considers necessary for a proper determination of the issues before it.