MATHURA PRASAD Vs. USUF HUSAIN

JUDGEMENT

(1.) This is an appeal under the Letters Patent in a pre-emption case. The appellants are the vendees who purchased shares in 8 villages under a sale-deed of the 11 of June 1907. They were at the date of this purchase admittedly strangers to the villages in question. The suit to pre-empt this sale was instituted on the 5 of October 1907. Before this suit was instituted, namely on the 21 of August, 1907, the appellants purchased shares in 5 of the 8 villages) and thereupon became co-sharers in those villages. A suit was brought by the plaintiff- respondent to pre-empt the sale of the 21 of August 1907, and a decree for pre- emption was passed in his favour, but he failed to pay the purchase-money and consequently the suit was dismissed. The effect of this decree is that the appellants have now an indefeasible interest in the five villages in question and this interest they acquired prior to the institution of the suit out of which this appeal has arisen. Their title accrued at the date of their purchase but their interest would have passed to the plaintiff pre-emptor if he had carried out the decree in his favour for preemption. When he failed to do so the title of the appellants became indefeasible.

(2.) It is contended by the learned Counsel for the appellants that by reason of the purchase of the 21 of August, 1907, they are entitled to shares in five of the villages, and are by virtue of that purchase indefeasible owners and co-sharers.

(3.) The learned Vakil for the respondent resists this contention and relies upon the decision of Richards and Alston, JJ., in the case of Rohan Singh V/s. Bhau Lal 6 A.L.J. 699 : 3 Ind. Cas. 42 : 31 A. 530. That case is clearly distinguishable from the present inasmuch as the purchase in that case was made after the institution of the suit for pre-emption. Another case which has been relied upon is that of Kaleshar Rai V/s. Nabiban Bibi 28 A. 642 : A. W.N. (1906) 164 : 3 A.L.J. 246. In that case it was held by our brother Richards that where in a suit for pre-emption it appeared that the vendee had prior to the date of the suit made a second purchase in regard to which no suit had been filed prior to the date of the institution of the suit in regard to the first purchase, but limitation had not expired in regard to the second purchase, the vendee could not be considered by virtue of his second purchase to have been a co-sharer at the date of the institution of the suit for preemption of the first sale. That case is also distinguishable from the present case because there it was open to the parties seeking preemption to pre- empt also the second sale. The case before us is different inasmuch as the appellants have acquired an indefeasible title under their second purchase and are co-sharers in the full sense of the word. A suit for pre-emption was brought in respect of the second sale and has failed.