1. After hearing counsel for the parties in this case, we have decided that the appeal must prevail. The facts may be briefly stated. The suit for pre-emption was filed on the 7th September, 1922, to pre-empt a sale, which was carried out on the 19th September, 1921.
2. On the 14th September, that is one 'week after the suit had been filed the vendee re-sold the property to the vendor, and on the 11th October, 1922, he put in a written statement saying that the plain' tiff had no cause of action inasmuch as he the vendee, had got rid of the property by re-transferring it to the vendor. The Court of first instance applied the doctrine of lis pendens and decreed the suit. The lower Appellate Court has reversed the first Court's finding on the strength of the ruling to be presently referred to that the doctrine of Us pendens did not apply.
3. In our opinion the decision of the Court below is erroneous. The case upon which the lower Appellate Court relied is reported in Herkeshi v. Mewa Ram A.I.R. 1923 All. 294.
4. We have lately had before us a case which is on all fours with the case now under consideration. This is S.A. No. 1708 of 1923, : AIR1925All502 . We cannot, on the facts make any distinction between that case and the case now before us.
5. In that case we had occasion to refer to the judgment upon which the lower Appellate Court has relied in this case and we pointed out that the judgment did not apply to the facts before us. We also quoted other rulings of this Court to show that the doctrine of Us pendens applied to suits of this kind. We referred to Ghasitey v. Gobind Das (1908) 30 All. 467 and Kamta Prasad v. Ram Jag (1913) 36 All. 60.
6. We are satisfied that the doctrine of Us pendens has to be applied in the present case. We think it is intolerable that a vendee, after a suit for pre-emption has been filed should be allowed to re-convey to the vendor and to defeat the suit which has been brought by a pre-emptor. In a case of this kind parties who enter into such transactions are not entitled to the protection of the Court, while the plaintiff, on the other hand, ought to have the full benefit of the doctrine of Us pendens, as laid down in Section 52 of the Transfer of Property Act. Applying that principle, therefore, we reverse the decree of the Court below and restore that of the Court of first instance. The appellant is entitled to his costs here and heretofore. In this Court costs will include fees on the higher scale.