RAM LAGAN SHUKUL Vs. BALDEO MISIR

JUDGEMENT

(1.) This is a defendant s: appeal arising out of a suit for pre-emption. The; main plea taken on behalf of the defendant was that the plaintiff had no preference over him. The court of first instance dismissed the suit on the 24 of July, 1920. On appeal the lower appellate court was of opinion that under the custom recorded in the wajib-ul-arz the plaintiff had a right of preference as against the defendant vendee though the latter was a co-sharer in the same thok. The decree of the first court was accordingly set aside and the suit decreed. A second appeal was preferred to this Court on the 28 of July, 1921, and one of the grounds raised in the memorandum of appeal was that inasmuch as the plaintiff respondent had ceased to be a co-sharer at the time of the lower appellate court's decree, his suit should have been dismissed.

(2.) An affidavit was filed in support of the allegation implied in that ground and time was given to the opposite party to file a, counter affidavit if necessary. No such affidavit was filed.

(3.) We may, therefore, take it that it is the appellant's case-that on the 20 of April, 1921, the share of the plaintiff pre-emptor, on the strength of which he had instituted the suit, was sold at auction and purchased by a third party. This sale was subsequently confirmed and a sale certificate/of a later date was issued, a certified copy of which is produced along with the affidavit. We may, therefore, take it that the plaintiff respondent ceased to be a co-sharer on the 20 of April, 1921. This, however, was a date subsequent to the date of the first court's decree. But we would like to note that although the auction-purchase had taken place before the passing of the decree of the lower appellate court, the fact was never brought to the notice of that court.