Knox and Kabamat Husain, JJ.
1. Karamat Husain, J., by his order, dated the 8th of March, 1911, referred this appeal to a Bench of two Judges. The facts are these:--The owner of the property in dispute died about 1893. His widow, Maghi, took possession of the property, and adopted Chunni Lal to her husband in 1900. After her death in that year, Chunni Lal on the 10th of December, 1900, applied for mutation of names in his favour, and Narain, father of the plaintiff, objected. His objection was disallowed and the name of Chunni Lal was entered in April, 1901.
2. Chunni Lal, on the 25th of June, 1907, sold a portion of the property to Mata Din. The plaintiff, on the 25th of June, 1908,. brought an action against Mata Din and Chunni Lal. He sought three reliefs, (1) a declaration that the adoption of Chunni Lal was invalid, (2) recovery of possession of the property, and (3) in the alternative possession by right of pre-emption. The court of first instance dismissed the suit for declaration and possession and decreed that for pre-emption.
3. The plaintiff, appealed and the defendants filed objections under Order XLI, Rule 22. The lower appellate court came to the conclusion that the adoption was invalid, but that the suit being one for possession was not barred by time. It gave the plaintiff a decree in the following terms.-'The decree of the lower court, dated the 12th November, 1908, be modified and the claim be decreed in part with proportionate costs, the claim for declaration be dismissed and the claim for possession of the property be decreed with proportionate costs. The respondent's objection be dismissed with costs.' The defendants come to this Court in second appeal, and it is urged by their learned vakil that the result of the dismissal of the plaintiff's claim for a declaration that the adoption of Chunni Lal is invalid is that, so far as the plaintiff is concerned, Chunni Lal's adoption cannot be questioned, and that his suit, therefore, for possession must fail. The learned vakil for the respondent argues that the lower appellate court in its judgment has found the adoption to be invalid; that the dismissal of the plaintiff's suit for a declaration of the invalidity of the adoption on the ground of limitation does not make the adoption valid, and that in a suit for possession on title a court may find an adoption to be invalid, although a suit for the invalidity of the adoption may be barred by time; In support of his contention he refers to Natthu Singh v. Gulab Singh (1896) I.L.R. 17 All. 167 and Chandania v. Salig Ram (1903) I.L.R. 26 All. 40 and says that notwithstanding the dismissal of the claim for a declaration that the adoption was invalid, a decree for possession on title could be given. In none of the rulings referred to by the learned vakil for the respondent had the suit for a declaration of the invalidity of the adoption been dismissed, and those rulings are, therefore, distinguishable from the case before us. The dismissal of the plaintiff's suit for the declaration that the adoption was invalid precludes him from questioning the validity of the adoption, and without establishing that the adoption is invalid, he cannot establish his title to possession. His suit for possession must therefore fail. If the avoidance of a juristic act is essential for the completion of a plaintiff's title for possession and the suit for such avoidance is time-barred, it is difficult to Bee how a suit for possession on title can succeed, and the remarks of their Lord-ships of the Privy Council in Lachman Lal Chowdhri v. Kanhaya Lal Mowar (1691) I.L.R. 22 Calc. 609 at 611 favour that view ; but as the trend of authority in this Court is the other way and as it is unnecessary to discuss that point in the present appeal, we refrain from entering into that question.
4. For the above reasons we allow the appeal, dismiss the plaintiff's claim for possession, and direct the lower appellate court to try the following issues with reference to the suit of the plaintiff for pre-emption.
(1) Is the plaintiff entitled to pre-emption on the basis of the wajib-ul-arz?
(2) If he is, what is the price paid by Mata Din for the property claimed ?
5. Additional evidence may be received. Ten days will be allowed for objections.
6. Mr. Banerji, for the respondent, admits that findings have been returned to both the above points by the lower appellate court and that he accepts those findings.
7. Upon those findings we decree the plaintiff's claim for preemption and direct that if he pay Rs. 150 on or before the 10th day of October, 1911, a decree be issued in his favour. If the amount be not so paid, the suit will stand dismissed with costs in all courts. The appellants will get the costs of this appeal.