DURGA PRASAD PANDE Vs. FATEH BAHADUR SINGH

JUDGEMENT

(1.) This and the connected Appeal No. 257 of 1912 arise out of two pre-emption suits brought by rival pre-emptors to secure property in the village of Khartam Sarai, which was transferred by the defendant, Fateh Bahadur Singh, on the 8th of November, 1910, to the second defendant, Pandit Govind Prasad.

(2.) The appellants in the present appeal are the plaintiffs, Durga Prasad Pande and Ganga Prasad Pande. Their case is that there is a custom of pre-emption prevailing in the village under which they have a right to pre-empt the property sold as against the vendee, Pandit Govind Prasad, who is an entire stranger to the village community. Musammat Adhar Kunwari, the plaintiff in the connected suit, is a co-sharer also in the mahal. She also pleaded the existence of a custom of pre-emption and claimed that she had a right preferential to that of the other plaintiffs, Durga Prasad and Ganga Prasad. Each set of plaintiffs was made a defendant to the other parties suit.

(3.) The court below has dismissed the suit of Durga Prasad Pande and Ganga Prasad Panda on the ground that, though there is a custom of pre-emption existing in the village, it is a custom which is enforcible only among the co-sharers owning 12 annas out of 16 annas in the mahal; that therefore these plaintiffs have no right whatever, as they own the other 4 anna share, and that Musammat Adhar Kunwari has a right to pre-empt the whole. It came to a conclusion as to the true sale consideration and gave Musammat Adhar Kunwari a decree for possession conditional on the payment of the amount fixed within a certain period. Durga Prasad Pande and Ganga Prasad Pande have appealed in both cases. The vendee Pandit Govind Prasad has not appealed against the decree passed in favour of Musammat Adhar Kunwari. It is pleaded on behalf of the present appellants that the finding of the court below that a custom of pre-emption does not extend to the owners of the 4 annas owned by these two appellants is incorrect; and that the evidence clearly shows that the custom applies to the whole village They accept the amount of consideration found to be correct by the court below, and they plead that Musammat Adhar Kunwari has no right to pre-emption in preference to their own; but they as co-sharers in the same thok with the vendor have a right preferential to her.