PAHLAD KOERI Vs. BMOHAR GOBIND RAI

JUDGEMENT

(1.) The appellant here was a plaintiff in the Court of first instance and the suit was a suit for pre-emption in respect of a sale carried out by a deed dated the 22 May, 1923. Having regard to date of the sale it is clear that the provisions of the Agra pre-emption act, U.P. Act, 11 of 1922, governed the case. By this sale- deed the Defendants Nos. 4 to 8 purported to transfer certain shares in three khatas, Nos. 4, 2 and 20, to the Defendants Nos. 1, 2 and 3.

(2.) The plaintiff came into Court and asked for pre-emption of the share situated in Khata No. 4. He declared in his plaint that he was not entitled to any preferential right of purchase in respect of the shares in Khatas Nos. 2 and 20. In the first paragraph of his plaint the plaintiff alleged that he was a co-sharer with the vendor in Khata No. 4. He admitted that the 1 defendant Mohar Gobind Rai, was a co-sharer in Nos. 2 and 20 but he alleged that this defendant had no share in Khata, No. 4. As regards the second and third defendants, named, respectively, Inderjit Govind Rai and Bindeswar Prasad Govind Rai, the allegation of the plaintiff was that these two defendants were entire strangers that is to say, had no share in the village. In the 4 paragraph of his plaint the plaintiff alleged that the price set out in the sale deed was fictitious, and he fixed the real price of the share in Khata No. 4 which he was liable to pay in the event of his getting a decree at Rs. 320. In the 6 paragraph of his plaint the plaintiff stated that as regards the shares in Khatas No3. 2 and 20, he had no better right than the Defendant No. 1, and it was for this reason that he did not seek pre-emption of the shares situated in those khatas.

(3.) The suit was resisted by the vendees, Defendants Nos. 1 to 3. They admitted that the plaintiff was a co-sharer in Khata No. 4. but they denied that the Defendants Nos. 2 and 3 were strangers to the village. It was stated that these two defendants, together with Defendant No. 1 constituted a joint Hindu family. Other pleas were raised and finally a plea was taken in the 8 paragraph of the further pleas to the effect that the plaintiff's suit was bad for relinquishment of a portion of the claim, namely, with respect to the land situated in Khatas Nos. 2 and 20. It was pleaded that for this reason the plaintiff's suit should be dismissed. The first Court framed issues, the second of which was "Are the Defendants Nos. 2 and 3 strangers?" The 6 issue was: "Is the suit bad for partial pre-emption"? Neither party gave any evidence. The Subordinate Judge who tried the suit dealt with Issue No. 2 in a rather curious way. No evidence, as we have said, was produced, but the learned Subordinate Judge decided this issue in the following sentence: It is plaintiff's own case that the Defendants Nos. 2 and 3 are strangers to the village in suit. I decide the issue accordingly.