RAMAUTAR SINGH Vs. BRIJ KISHORE PRASAD SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a pre-emption suit in which they claimed certain proprietary shares in tauzi Nos. 12832, 4208, 4285 and 4301 which had been sold by defendants third party to defendants first party and defendants second party respectively by two sale deeds on 4 July 1927. Their case was that they came to know of these sales on 9 July 1927 and plaintiff 1 immediately performed the ceremony known as talab mowasibat and that shortly afterwards he went to the place where the properties were situated and performed the ceremony of talab istishad in the presence of witnesses, and lastly he went to the house of the defendants and made a demand from them of the properties purchased by them on the ground that he had a right of pre-emption and that he had performed the ceremonies required by law to enforce that right.

(2.) A number of pleas were taken by the defendants in answer to the suit, but we are concerned in this appeal with three of them which are as follows: (1) That there was misjoinder of defendants and cause of action in the suit; (2) that the defendants themselves were cosharers in the properties sold and therefore the plaintiffs had no right of pre-emption as against them; and (3) that the plaintiffs never performed any of the ceremonies required by law nor did they make any demand for the properties in question from the defendants. The learned Subordinate Judge has accepted all these pleas and decided the case against the appellants. Mr. Janak Kishore who appears for the appellants challenges the correctness of the decision of the learned Subordinate Judge on all these points. The question as to whether there was a misjoinder is not a very serious one though in my opinion the view taken by the learned Subordinate Judge is correct in law. Order 1, Rule 3 clearly lays down that: All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such person, any common question of law or fact would arise.

(3.) Mr. Janak Kishore contends that as the questions of law and fact which arose in the present case between the plaintiffs and the two sets of contesting defendants were identical, it was permissible to join them in the same suit. He however overlooks the fact that the important condition which is laid down by the rule is that the right to relief against all the defendants must arise out of the same act or transaction or series of acts or transactions. Here the transactions which affect the two sets of defendants are separate inasmuch as they purchased different properties and each of them got a separate sale deed executed by the defendants third party. It appears to me therefore that the view taken by the learned Subordinate Judge is correct. Reliance is placed however on Harendra Nath V/s. Puma Chandra . That decision was based almost wholly on certain English authorities and the analogy of the rule of procedure which 13 followed in English Courts and the facts of that case were also different. In my opinion the present case will have to be decided on its own facts and those facts do not seem to be covered by Order 1, Rule 3.