RAM RAJ TEWARI Vs. SHEORAJ SAITHWAR

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption. It is connected with second appeal No. 753 of 1927 arising out of a rival suit. On 14 November 1924, two sale-deeds were executed of shares in khata No. 3 in the mahal in favour of strangers. Suit No. 770 was instituted by Sheoraj and others for pre- emption. These plaintiffs were cosharers in the mahal but not cosharers in khata No. 3. Subsequently one more suit No. 800 was filed by Ram Raj Tewari to pre- empt the same properties. This plaintiff was a cosharer in khata No. 3, also. Both these suits were connected and the plaintiffs in one suit were impleaded as pro forma defendants in the other suit. Thus at the time when the sale-deeds were executed as well as at the time when the suits were filed Ram Raj Tewari had a preferential right as against Sheoraj and others to pre-empt this property. But during the pendency of these consolidated suits Sheoraj and others acquired a share in khata No. 3 also by virtue of a decree of a civil suit dated 26 February 1926. On that date they all became equally entitled to pre-empt the property.

(2.) The Court of first instance passed its decree on 27 March 1926 and held that Ram Raj Tewari had a superior right to pre-empt the entire property in preference to Sheoraj and others. It accordingly gave Ram Raj Tewari a decree for the whole of the property in the first instance. On appeal the learned District Judge has taken a contrary view and has held that the crucial date in such cases is the date of the first Court's decree and that inasmuch as on that date all the rival claimants had equal rights there was no preference inter se. He has accordingly divided the property equally among all the pre-emptors.

(3.) It seems to us that the view taken by the lower appellate Court is correct. As has been held by a Full Bench of this Court in the case of Ram Saran Das v. Bhagwat Prasad , no decree for pre-emption can be passed in favour of any person unless he has a subsisting right of pre-emption at the time of the decree. So that if either by loss of his own right or by an acquisition of a right by the defendant the preference is destroyed by the time the decree comes to be passed the plaintiff ceases to be entitled to such a decree. In the present case no doubt all the rival pre-emptors had a subsisting right of pre-emption as against the vendees. But the rival pre-emptors are also impleaded as proforma defendants and no decree for pre-emption can be passed in favour of Ram Raj Tewari unless the Court is satisfied that he has a subsisting right to obtain the decree at the date when that decree is to be passed. Inasmuch as Ram Raj Tewari has lost his preference as against Sheoraj and others it seems to us impossible to pass a decree in favour of Ram Raj Tewari and others for a share as regards which he has no preference compared with Sheoraj and others. Although Section 19 does not in express terms apply to the case of rival pre-emptors the interpretation which has been put upon it and which requires that the right of preference of the plaintiff should subsist till the time of the decree makes this view consistent with the ruling in the Full Bench case.