ASA SINGH Vs. NAUBAT AND JHANDA SINGH

JUDGEMENT

(1.) THE fasts of this case are simple. Lal Singh and his mother, on the 12th of April 1917, sold their share in the village to one Jhanda Singh, an entire stranger. At the late of this sale the plaintiff Naubat and the present appellants, Asa Ram and Bijay, were related to Lai Singh and his mother, Asa Ram and Bijay being nearer. POP the purposes of thin decision we may assume that the closer relatives had the prior right of preemption. Asa and Bijay, however, took no steps to assert their right, so Naubat, on the 12th of April 1918, that is, the extreme limit of the period of limitation, brought his suit to preempt the sale to Jhanda Singh. While the suit was pending and prior to the decree, Jhanda Singh transferred the property to Asa and Bijay. THEy were made parties to the suit. THE Courts below have held that the transfer to Asa and Bijay pendents lite has not affected the plaintiff s right to preempt and have given him a decree. Asa and Bijay come here in second appeal and it is argued that, on the date of the decree, the plaintiff had no prior right of purchase over the appellants Asa and Bijay and, therefore, on the date of the decree, his right of pre-emption no longer existed and his claim should, therefore, have been dismissed. With this contention we cannot agree.

(2.) ON the 12th of April 1918, when Naubat brought his suit, Asa and Bijay who then had a prior right of purchase had practically waived their right, in that they had not attempted to enforce it. ON the date of the sale in their favour by Jhanda Singh they had no right of pre emption left in their in respect to the sale of the 12th of April 1917, whereas Naubat had such a right. Naubat s right to preempt, therefore, continued right up to the date of the decree and the transfer pendente lite by Jhanda Singh in favour of Asa and Bijay who had lost their right of pre emption, cannot possibly affect the right of Nan but to take the property. The appeal, therefore, has no force. We accordingly dismiss it with costs including fees on the higher scale.