MADHO PRASAD Vs. SHIB CHARAN

JUDGEMENT

(1.) These two appeals raise a very simple question of law. Two sale deeds were executed on different dates and to preempt each sale two separate suits were filed, that is, there were in all four suits. There were two seta of rival preemptors who filed these suits. Second Appeal No. 168 of 1946 arises out of Suit No. 10 of 1944 filed by Madho Prasad and others and Suit no. 21 of 1944 filed by Dori Lal and Pooran, who were plaintiffs first set, and six others, who were arrayed as plaintiffs second set, on the allegation that the suit should be decreed in favour of either the 1 or in the alternative in favour of the plaintiffs 2nd set. Two similar suits were filed to pre-empt the other sale deed.

(2.) Madho Prasad and others pleaded that by reason of the fact that in suit no. 21 of 1944 Dori Lal and Pooran had joined with them six other persons as plaintiffs and had claimed an alternative relief, it was clear that either Dori Lal and Pooran were strangers or those other six plaintiffs were strangers and, therefore, by reason of Section 21, Agra Preemption Act, Dori Lal and Pooran must be deemed to have lost their rights to preempt. In suit No. 21 of 1944 Dori Lal and Pooran have claimed that under a deed of gift executed by Mt. Nanni they have become co-sharers in the thok in which the property, sought to be preempted, is situate and have, therefore, a right superior to that of Madho Prasad and others to pre- empt the property. They, however, go on to say that in case it is held that the deed of gift executed by Mt. Nanni is for any reason invalid and they are held to be strangers, then no decree should be passed in their favour but a decree should be passed in favour, of the other plaintiffs who were the reversionary heirs of Har Deva and must be deemed to have become the owners of the property covered by the deed of gift as Mt. Nanni had died before the execution of the sale deedi and they have, therefore, become co-sharers in the same thok and would have a right of preemption, that is, the two sets of plaintiffs claim adjudication of their rival claims and pray that, a decree may be passed in favour of the set which is deemed to be entitled to claim preemption. The two sets of plaintiffs do not claim a joint decree but a decree in the alternative.

(3.) The lower appellate Court has carefully gone into the question and has held that on a true interpretation of Section 21, Agra Preemption Act, it cannot be said that the two sets of plaintiffs have asked for a joint decree and, therefore, their rights cannot be affected. The lower appellate Court has relied on a Division Bench ruling of this Court, Sheo Balak Chaudhury V/s. Ram Bar an Chaudhury , where it was pointed out that the object behind the section was that "if a person possessing a superior right is not prepared to pre-empt the sale on payment of the whole price but finds it necessary to join with him a person who has an inferior right, so that they may share in the preemption money to be deposited, he by his conduet gives up his superior right and lowers himself to the status of the person whom he joins." The other reason may be that if a pre-emptor joins with himself a stranger and has no objection to that stranger getting the property, there is no reason why he should be allowed to object to the vendee being a stranger or if he joins with himself a pre-emptor having an inferior right and the vendee is also a pre-emptor of the inferior class, there is no reason why he should be allowed to object to the vendee when he does not object to his co-plaintiff.