1. We are of opinion that the appeal, so far as it relates to the question of limitation, has no force. Haidar Ali's suit, so far as it claimed pre-emption in respect of the sale of 14th December 1882, was properly instituted within a year after the sale, and the vendor and the vendees, necessary parties to such a suit, were duly impleaded.
2. The suit was governed by Article 10 of the Limitation Act, and was obviously within time. So far as the position of Durga, appellant, is concerned, it is true that he was impleaded as defendant to the suit after the lapse of one year from the date of the sale. But the claim against him is not of the nature contemplated by Article 10 of the Limitation Act. He was impleaded, not because he was a party to the sale in respect of which pre-emption was sought to be enforced, but because he had, by instituting a rival suit for pre-emption, rendered it necessary for the plaintiff Haidar Ali to pray in his suit for the declaration that he had a right of pre-emption preferential to that of the defendant Durga. Such a claim cannot be regarded as a claim for pre-emption, but a claim to establish a right to pre-empt the property in preference to a rival pre-emptor. In other words, the suit, so far as it relates to Durga, constituted a claim by one pre-emptor against another for determination of the question whether the plaintiff or the defendant had the better right to pre-empt the property. The claim was essentially declaratory in its nature, and there being no specific provision for such a claim in the Limitation Act, it was rightly held by the Lower Appellate Court to be governed by Article 120 of the Limitation Act,--the right to sue against Durga having accrued when the latter instituted his pre-emptive suit on the 4th of December 1883.
3. But we are of opinion that the third ground of appeal has force. The learned pleaders for the parties admit that the record of the case is complete, and that, although Haidar Ali respondent's suit was disposed of by the Court of First Instance on a preliminary point, yet that Court did not exclude any evidence offered by the parties. Such being the case, we are of opinion that Section 562 of the Civil Procedure Code was not applicable, and the order of the Lower Appellate Court remanding the case for a second decision was opposed to the express provisions of Section 564 of the Code. We must therefore, whilst upholding the view of the Lower Appellate Court on the question of limitation, set aside the order of that Court, and direct it to dispose of the case itself on the merits, with reference to the issues raised by the pleadings of the parties. This view renders it unnecessary for us to dispose of the last ground of appeal, which relates to costs.
4. We decree this appeal, and, setting aside the order of the Lower Appellate Court so far as it relates to the suit of Haidar Ali, plaintiff-respondent, remand the case to that Court for disposal according to law. Costs to follow the result.