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Sheoraj Singh and anr. Vs. Naik Singh Sahai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1919All283; (1919)ILR61All423
AppellantSheoraj Singh and anr.
RespondentNaik Singh Sahai and ors.
Excerpt:
pre-emption - sale to stranger--plaintiff's joining in their suit persons who were not strangers but had pre-emptive rights inferior to theirs. - .....in which munua lal alone was plaintiff and the other in which the remaining two plaintiffs were sheoraj singh and ram ghulam. during the trial the rival pre-emptors came to terms, by which two-thirds of the property was given to munna lal and one-third to the other two plaintiffs out of the half of the property sold belonging to the defendants nos. 1--3. as to the other half of the property sold belonging to badri prasad (defendant no. 4) the claim for pre-emption was not pressed. the first court decreed the claim in the terms of the compromise. the vendees defendants 1--3 appealed to the judge. as against the two plaintiffs sheoraj singh and ram ghulam, the contention was that by joining the other two plaintiffs, (who, as we have mentioned above, withdrew immediately after the filing.....
Judgment:

Henry Richards, Kt., C.J. and Muhammad Rafiq, J.

1. This appeal arises out of a suit for pre-emption, It appears that there were two suits brought by rival pre-emptors--one by Munna Lal alone, and the other by four other persons. In the second suit (where there were four plaintiffs) two of the plaintiffs withdrew the day after the plaint was filed, The two suits then continued, one in which Munua Lal alone was plaintiff and the other in which the remaining two plaintiffs were Sheoraj Singh and Ram Ghulam. During the trial the rival pre-emptors came to terms, by which two-thirds of the property was given to Munna Lal and one-third to the other two plaintiffs out of the half of the property sold belonging to the defendants Nos. 1--3. As to the other half of the property sold belonging to Badri Prasad (defendant No. 4) the claim for pre-emption was not pressed. The first court decreed the claim in the terms of the compromise. The vendees defendants 1--3 appealed to the Judge. As against the two plaintiffs Sheoraj Singh and Ram Ghulam, the contention was that by joining the other two plaintiffs, (who, as we have mentioned above, withdrew immediately after the filing of the plaint) they had forfeited their rights. This contention found favour with the lower appellate court, and it accordingly made a decree, the effect of which was that Munna Lal got all the property which had been sold to defendants 1--3. The plaintiffs Sheoraj Singh and Ram Ghulam have come here in second appeal, contending, first; that they did not forfeit their rights by joining with them the two plaintiffs because they also were co-sharers and, secondly, that in any event the amendment of the plaint cured the defect. Munna Lal is amongst the respondents, and he is the only respondent who appears. He is represented by Mr. Haidar, who says that his client has no objection to the decree of the first court being restored, provided that the decree of this Court provides that he shall be at liberty to withdraw all money which he paid in respect of any property that was given to the plaintiffs appellants under the terms of the compromise, and also that he should not be saddled with the costs. The question we have to decide is whether or not the plaintiffs lost their right of pre-emption under the circumstances of the present case. If we assume that the two plaintiffs whose names were withdrawn after the filing of the suit, were persons who must be regarded as strangers, then the case of Bhupal Singh v. Mohan Singh (1897) I.L.R., 19 All., 324 is an authority that the mere joining of unauthorized persons In a suit for pre-emption is fatal and that the difficulty is not gob over by subsequent amendment of the plaint by striking out of these persons' names. It is quite unnecessary for us to express any opinion as to the ruling in this case, because we think that, even if all four plaintiffs had remained on the record, that fact under the circumstances of this case would not have deprived the appellants hero of their right of pre-emption. It appears that all four plaintiffs were co-sharers and that the vendees were absolute strangers, having no share in the village and having no right of pre-emption. True it may be that two of the original plaintiffs had an inferior right to Sheoraj Singh and Ram Ghulam, but we think that where the suit is a suit against strangers the plaintiffs by joining persons who have different rights inter se do not thereby forfeit their right. The learned Judge has referred to the case of Gupteshwar Ram v. Rati Krishna Ram (1912) I.L.R., 34 All., 542. In that case it was held that where the vendees had joined with them in their purchase a person who had an inferior right to the plaintiff must be deemed to have forfeited their right as against the plaintiff. The distinction between the facts of that case and the facts in the case before us is that one set of vendees in the case quoted had equal rights with the plaintiff while another set had an inferior right to the plaintiff. In the present case all the plaintiffs have a right of pre-emption and the vendee had no right at all. We cannot agree with the view taken by the learned Judge. The result is that we allow the appeal, set aside the decree of the lower appellate court and restore that of the court of first instance, with this modification that the plaintiffs will have one-third of the property conditional upon their paying the amount of the consideration within three months from this date. Munna Lal will be at liberty to withdraw any money which he has paid in excess of his share as a consequence of the decree of the lower appellate court. Sheoraj Singh and Ram Ghulam will have their costs of this Court and of the court below against defendants 1--3. If the money is not paid by Sheoraj Singh and Ram Ghulam within three months allowed, their suit will stand dismissed with costs in all courts. As between Munna Lal and Sheoraj Singh and Ram Ghulam each party will pay his own costs in this Court and in the court below.


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