WAJID ALI KHAN Vs. PURAN SINGH

JUDGEMENT

(1.) IN this case Puran Singh, Lekhraj Singh, Amar Singh and Pirthi Singh, who were co-sharers in the village of Bighepur, filed a suit for pre-emption of certain land which the defendant Muhammad Wajid Khan, who is the present appellant, had purchased in the village. The sole question in the case was whether the custom of preemption obtained in the village, and the Additional Subordinate Judge of Aligarh having found this issue in favour of the plaintiffs gave them a decree for possession on their depositing the pre-emption money in Court. They duly deposited the money and obtained possession in execution of the decree.

(2.) IT was suggested for the first time before the Board that the fourth plaintiff Pirthi Singh, who actually deposited the money in Court and obtained possession, was the only plaintiff who executed the decree, and that the right of the other decree-holders and their legal representatives to execute had become barred by limitation. In their Lordships' opinion there is no foundation for this contention. The application for execution of the decree, which was signed by all the four decree-holders, stated that the money had been deposited by them and prayed that possession might be given to them. The execution proceeded upon this basis, and in reply to objections subsequently raised by the defendant Pirthi Singh himself stated that the decree-holders had obtained possession. It is clear therefore that the deposit was made and possession obtained on behalf of all the decree-holders.

(3.) AS it was, the surviving respondents allowed the appeal to be heard without objection in the absence of the third plaintiff and his legal representatives, thus taking the chance of succeeding on the merits; and when they had failed and the decree of the lower Court had been reversed and the suit dismissed and the defendant had obtained formal restitution of possession in execution of the appellate decree, they joined with the representatives of the deceased third plaintiff in putting in the application to the Subordinate Judge, which is the subject of this appeal to His Majesty in Council, objecting that the whole appeal had abated by reason of the representatives of the third plaintiff not having been brought on the record within the time limited by law and that the appellate decree was a nullity and did not entitle the defendant to restoration of possession. They accordingly prayed that the order which the defendant had obtained without notice to them might be set aside and that they might be put in possession again.