ROHAN SINGH Vs. BHAU LAL

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-emption. The sale which gave rise to the alleged right took place on the 11 of September 1903. The present suit was instituted on the 10 of September 1904. The court of first instance dismissed the plaintiff's suit on the 22 December, 1904, on the sole ground that the court- fee paid was insufficient. The District Judge confirmed this decree of the court of first instance on the 11 April 1905. On the 25 of March 1907 the High Court set aside the decrees of both the lower courts, holding that the court-fee was sufficient, and remanded the case to be disposed of on the merits. The only evidence of the custom of pre-emption was an extract from the wajib-ul-arz which provided that if any co-sharer wanted to dispose of his share, he must in the first instance offer it to a co-sharer, and then he might sell it to a stranger.. For the purpose of this appeal we must consider that at the time of the sale and" of the institution of the suit, and also at the dates of the decrees of the Subordinate Judge and the District Judge mentioned above, the plaintiff was a co-sharer and the defendant vendee a stranger. It however appears that on the 7 of January 1906, the defendant vendee became a co-sharer in the village, and in the sense of the wajib-ul-arz was no longer a stranger. When therefore the case came back to the Subordinate Judge for decision on the merits the defendant vendee filed an amended written statement in which he set forth the sale to him of the 7 of January J 906, and submitted that by virtue thereof he was not now a stranger and that the plaintiff's suit should be dismissed. THIS contention having found favour with both the courts below the plaintiff comes here in second appeal. From the facts which we have stated it will appear that the plaintiff had a good cause of action not only at the time of the sale and at the institution of the suit, but also at the time when decrees in his favour ought to have been made by the court of first instance and by the court of first appeal.

(2.) IT is contended on behalf of the respondents that the present case is concluded by the ruling in Ram Gopal V/s. Piari Lal (1890) I.L.R. 21 All. 441. In that case, however, proceedings for partition were pending before (he plaintiff's suit was filed, and the partition proceedings were completed before the court came to make its decree; wish the result that the plaintiff had no longer the status which would entitle him to pre-empt the property. The court therefore dismissed his suit. IT is necessary to point out that the facts of that case very materially differed from the facts of the present case. The plaintiff in the case cited had by virtue of the partition, which bound all persons in the village, lost his rights, and those partition proceedings had been instituted before the pre-emption suit was started. In the present case the plaintiff's position is just the same as it was when he instituted his suit. He was a co-sharer then and he is a co-sharer now. IT is the defendant vendee's position which has been altered. He has become a co-sharer, a status which lie did not occupy at the date of the sale, nor at the date of the institution of the suit, nor at the date when a decree in favour of the plaintiff ought to have been made. The decision in Bam Gopal V/s. Piari Lal was given on the 14 of June 1899. On the 15 of May of the same year a Full Bench of this Court had before it much the same question in the case of Janki Prasad V/s. Ishar Das (1899) I.L.R. 21 All. 374. In that case it was held that a person in order to en-force a right of pre- emption must fulfil the conditions, and the Tif Missing Page 532 to 533