ANRUP MISIR Vs. RAM HARAKH MISIR

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for declaration and possession. The parties to the present suit had jointly instituted a suit for pre-emption and a joint decree was passed in their favour by the trial Court. The pre-emption money was deposited in the name of the present defendant Ram Harakh Misir. The present plaintiff Anrup Misir does not appear to have attempted to deposit any money or to apply to the civil Court for execution of the decree or for delivery of the property to him. Ram Harakh Misir, however, applied for execution in his own favour alleging that the amount had been deposited by him alone. Execution was allowed and the possession was delivered to him of the entire pre-emption property. In spite of an objection raised by Anrup Misir in the revenue Court, Ram Harakh Misir succeeded in obtaining mutation of names. Anrup Misir then filed the present suit for a declaration that he had paid half the pre-emption money and asked for possession of the half share. In his plaint ha did not offer to pay half the amount in case it was found that he had not paid it, but later on his vakil made a statement in the trial Court to that effect.

(2.) Both the Courts below have found that the plaintiff had not paid a pie to the defendant on account of the pre-emption money as was alleged by him. The first Court decreed the suit on payment of half the amount but the appellate Court has dismissed it in to.

(3.) The main question raised before us on behalf of the appellant is that when a joint decree for pre-emption had been passed in favour of two plaintiffs, the payment by even one of the plaintiffs would enure for the benefit of both the decree-holders and both would be entitled to equal shares in the property, the defendant at best should recover the half of the amount which the plaintiff did not pay.