CHANAN SINGH Vs. KHEM SINGH

JUDGEMENT

(1.) AN objection has been raised that this appeal cannot proceed as the sole appellant died more than two years ago and his legal representatives have not been brought on the record; the appeal has therefore abated. But even on the merits there is no substance in this case.

(2.) ON 16-5-1943, defendants Nos. 1 and 2 purchased some land from defendants Nos. 3 and 4. In the sale deed there was an indemnity clause to the effect that if any portion of the land "passed out of the possession of the vendees they would be entitled to make good the deficiency from some other land of the ven-dors". The vendees were dispossessed of a portion of that land by the plaintiff and Kishan Singh. Under the indemnity clause the vendees therefore by means of a suit obtained a decree against the vendors and made good the loss of land which had been caused. The plaintiff Chanan Singh brought the present suit for possession by means of pre-emption. Both Courts have held that this suit does not lie because this does not amount to a sale.

(3.) I agree with this view of the law because the property taken under an indemnity clause does not amount to a sale within the meaning of the Pre-emption Act, and relying on a judgment of the Lahore High Court in 'daula v. AMAR SINGH', 46 Pun L. R. 301, I bold that the plaintiffs had no right of pre-emption. The suit has therefore been rightly dismissed.