ABHEY RAM Vs. TILKA

JUDGEMENT

(1.) Two questions stated below have been referred to this Bench in the following circumstances.

(2.) A suit for pre-emption was brought by six persons. It is not denied that five of them were co-sharers who had a right to pre-empt the sale on all material dates. Plaintiff 6, Malkhan, had refused to purchase the property when it was offered to him. He filed an application on 11-1-1946, to the effect that the property had been sold after he had refused to purchase the same, that he did not, therefore, wish to proceed with the suit, that his name might be removed from She array of plaintiffs and that the suit might be dismissed. Malkhan came into the witness-box and affirmed the application just mentioned.

(3.) The learned Munsif dismissed the suit on the ground that the other plaintiffs having joined Malkhan as a co-plaintiff had lost their right to pre-empt the sale by reason of the provisions of Section 21, Agra Pre-emption Act, and the suit must, therefore, fail. He relied on a decision of this Court in Liaqat Khan v. Abdul Majid Khan, 1944 A. L. J. 354: (A.I.R. (31) 1944 ALL. 284). The plaintiffs filed an appeal and the lower Court relying on two earlier decisions of this Court in Lal Behari v. Equeen Mohammad, A.I.R. (13) 1926 ALL. 722 : (97 I.C. 340) and Suraj Prasad v. Oudh Behari, 1931 A.L.J. 204: (A. I. R. (18) 1931 ALL. 216), allowed the appeal and decreed the suit. A second appeal against this decree came up for hearing before a Bench of this Court which referred the questions given below to a larger Bench for decision. The questions are :