1. The facts of this second appeal, which has been preferred by a vendee in a preemption suit, are slightly complicated. They are, however briefly these : On 30-9-1939, Brij Behari executed a sale deed in favour of Jai Narain Misra. A suit to pre-empt the sale was brought by Phal Narain on 30-9-1940. This was suit No. 350 of 1940.
2. The vendee resisted the suit on a variety of allegations, but it was ultimately decreed by the learned Munsif on 22-9-1942.
3. It is necessary to follow the fate of another sale of 19-1-1940. By it, some property in the same mahal, in which the property embraced by the earlier sale lay, was sold by the same vendor to the same vendee. The same pre-emptor preempted it, too. This was suit No. 139 of 1941. The vendee set up another sale of 34-11-1940, as a shield. He pleaded that this sale gave him the status of a cosharer, a part from the other two sales, and armed him with a right to resist preemption. The learned Munsif decreed the suit by his judgment of 3-2-1943.
4. Appeals were preferred by the vendee against the judgments and decrees of the learned Munsif in both the suits. Civil Appeal No. 85 of 1943 was preferred against the judgment and decree in suit NO 139 of 1941; C.A. NO. 91 of 1943 was preferred against the judgment and decree in suit No. 350 of 1940.
5. It might be mentioned that the last sale was never pre-empted.
6. Both the appeals came up for hearing on the same date Before the learned Civil Judge, Mr. Sri Nath, the sons made a statement that all the three transactions had their consent and they did not propose to challenge them. He reversed the decree of the learned Munsif in suit No. 139 of 1941 and held that, under the sale-deed of 14-11-1940, the vendee had acquired an indefeasible title. This judgment was affirmed by a learned Judge of this Court on 24-7-1945, and has now become final. The learned Judge held that the sale of 14-11-1940 was, apart from the fact that the sons had accepted it or the other sale-deeds, justified by legal necessity.
7. I now come to the second appeal before me, which is against the judgment and decree of the learned Civil Judge in appeal No. 91 of 1943, in the connected suit No. 350 of 1940.
8. It was argued before Mr. H.P. Asthana, who had succeeded Mr. Sri Nath, when the matter came up finally before him, that the decision of his predecessor, dated 29-1-1944, in the other suit, operated as res judicata and, even if it did not so operate, it, at least, armed the vendee with a right to resist pre-emption of the sale of 30-9-1939, inasmuch as he was, under the sale of 19-1-1940, a cosharer on 30-9-1940, the date on which the suit for its pre-emption was brought The learned Civil Judge refused to give effect to this plea on the ground that that judgment had not become final, as it was still the subject-matter of a second appeal.
9. In second appeal before me, the learned Counsel for the appellant argues that, after the judgment of the High Court, dated 24-7-1945, which has become final, he is entitled to resist the claim for pre-emption, because he was as much a cosharer in the mahal as the plaintiff-himself.
10. The learned Counsel for the respondent, however, strenuously contends that the judgment of the learned Civil Judge in suit No. 139 of 1940 came into being only on 29-1-1944, whereas the earlier suit, suit No 850 of 1940 had been decided by the learned Munsif on 22-9-1342, and nothing which happened after that date could affect the fate of this case. Reliance has been placed for this proposition on Khedan Ahir v. Ram Rekha Pande : AIR1934All934 . In my opinion, this case is clearly distinguishable from the case before me.
11. The learned Counsel also relies upon the Full Bench case in Tarachand v. Radhaswami Satsang Sabha : AIR1934All343 and contends that, if the sale in his favour was subsequent to the sale of 30-9-1939, that is, the date of the cause of action, or even after the date of the suit, the vendee cannot successfully resist pre-emption.
12. The sale of 14-11-1940, which was set up as a shield in suit No. 139 of 1941 and the sale of 19-1-1940, which was set up in the suit brought with respect to the sale of 30-9-1939, were, it is argued indefeasible upto 29-9 -1944, the date on which the sons came and signified their assent to all the three sale-deeds execute by Brij Behari. The contention, though plausible, does not stand scrutiny.
13. In order to appreciate the legal position, it will be necessary to trace the history of the transactions and proceed inversely.
14. The sale of 14-11-1940 though chronologically the last, may be treated almost as the starting point. This sale gave the vendee an indefeasible title. The result of it is that he was a cosharer on 22-9-1942, when the decree in suit No. 350 of 1940 was passed by the learned Munsif or on 8-2-1943, when the decree in the later suit, suit No. 139 of 1941 was passed by him. Once if was found that the sale or sales were justified by legal necessity, their capacity to confer an indefeasible title on the vendee did not depend upon the attitude of the sons. And the judgment of Hamilton J. the learned Judge of this Court recognised or declared what was merely a fact.
15. The vendee, to my mind, acquired an indefeasible title on the various dates of the transactions, even apart from the consent of the sons.
16. The result of the judgment of the High Court of 24-7-1945 is that the vendee was a cosharer with an indefeasible title, on 22-9-1942, when the suit which has given rise to the present second appeal, came up for final decision before the Court of first instance.
17. No other point has been argued I, there, fore, allow the appeal, set aside the decrees of the Courts below and dismiss the plaintiff's suit. Costs on parties throughout.