RAMESHWAR Vs. SHEO SHANKER

JUDGEMENT

(1.) This appeal arises out of a pre-emption suit. The sale sought to be pre-empted was effected on 13 May 1935 and was for an ostensible consideration of Rs. 3215. Out of this amount, a sum of Rs. 2800 was paid in cash to the vendor before the Sub-Registrar and the balance of Rs. 415 was left with the vendees for the discharge of a prior mortgage. The finding of the trial Court was that the consideration entered in the sale deed was the true consideration and there is no controversy about this point in the present appeal.

(2.) There were 13 plaintiffs in the suit. The property sold was in Mohal Khumani, and on the date of the institution of the suit all the 13 plaintiffs were cosharers in Mohal Khumani and the vendees were strangers to that Mohal. There can, therefore, be no doubt that on the date of the institution of the suit all the 13 plaintiffs had a good cause of action and had a right to pre-empt the sale in favour of the vendees. It, however, appears that proceedings for partition of the Mohal were going on in the revenue Court and the Collector had on 24 April 1936 confirmed the partition and the partition was to come into effect from 1 July 1936. The suit giving rise to the present appeal was filed on n May, 1936. As a result of the partition 9 out of the 13 plaintiff's ceased to be cosharers in the Mohal (Mohal Earn Bhawan) to which the property pre-empted was allotted on partition. 4 out of the 13 plaintiffs, however, remained eosharers in Mohal Ram Bhawan and the vendees were strangers to that Mohal.

(3.) The vendees contested the suit inter alia on the ground that as in consequence of the partition plaintiffs 1 to 9 had ceased to be cosharers in Mohal Ram Bhawan and had lost their right of pre-emption, the remaining plaintiffs viz., plaintiffs 10 to 13 also lost their rights of pre-emption as they had joined plaintiffs 1 to 9 in the suit. This contention of the vendees was overruled by the trial Court and that Court passed a decree in favour of all the plaintiffs conditional on the payment of Rs. 2800. The sum of Rs. 415 that had not been paid by the vendees was left with the plaintiffs for the discharge of a prior mortgage. The vendees appealed to the lower appellate Court and that Court agreed with the contention of the vendees noted above and dismissed the suit of all the plaintiffs. Being dissatisfied with the decree of the lower appellate Court, plaintiffs 10 to 13 have filed the present appeal. They have impleaded not only the vendees but also plaintiffs 1 to 9 as respondents to the appeal. The appeal is contested only by the vendees. In our judgment, the decision of the lower appellate Court is wrong and cannot be supported. The phrase "right of pre-emption" is defined by Clause 9 of Section 4, Agra Pre-emption Act (Act 11 of 1922) as meaning the right of a person on a transfer of immovable property to be substituted in place of the transferee by reason of such right.