GANESH Vs. MAHADEO

JUDGEMENT

(1.) This is the plaintiff's second appeal against the appellate decree of Shri Kali Charan Agarwal, Civil Judge, Gonda, dated 24th February 1945.

(2.) It appears that one Mata Prasad was the original owner of certain property and he mortgaged four pies share of zamindari property in patti Samjhari and Mahadeo Khata Khewat No. 48 Mohal Khas village Mayapur, to one Sarju Prasad. This mortgage was eventually foreclosed and a final decree for foreclosure was passed in favour of Sarju Prasad on 17th January 1942. On 3rd June 1943, Sarju Prasad sold his rights in the pro. party to the defendant Mahadeo for RS. 1,300. The plaintiff claimed that he was a co-sharer in patti Samjhari and Mahadeo and he had the right of pre-emption. The defence was that the defendant himself had a right of preemption when the foreclosure decree was passed; that he enforced his right of pre-emption and obtained this sale deed in his favour instead of filing a regular suit. Apparently he also pressed before the trial Court an argument that he being a cousin of Mata Prasad, the original owner of the property, bad a preferential right of pre-emption and so the plaintiff's claim could not be allowed. The trial Court held that the right of the defendant was superior to that of the plaintiff and further the sale bad been executed in enforcement of the right of preemption of the defendant on the basis of the foreclosure decree. The suit was accordingly dismissed. On appeal the findings of the trial Court were confirmed.

(3.) It has been urged in this second appeal that the view taken by the Court below is wrong, that the plaintiff got an independent right of pre-emption under the sale deed and that any way both he and the defendant had equal rights and the matter should have been decided by the drawing of lots. I have heard the learned counsel and find no force in this appeal.