1. The petition of appeal before us is an appeal on behalf of Nasiran Bibi, defendant. The suit in which she was arrayed as defendant arises out of a case of pre-emption brought by one Sheikh Rahim Baksh, who based his claim upon the Wajib-ul-arz in force in the mahal. He claimed that he and one Talib Ali, ancestor of the defendant Muhammad Halim, were relatives and co-sharers in the mahal, and that Janki Singh, who has also been arrayed as defendant in the suit and as respondent in the appeal, was a total stranger in the mahal. He claimed a preferential right of purchase of the property in dispute. The defence was to the effect that the plaintiff Rahim Baksh had no cause of action and that the cause of action alleged in the case no longer subsisted. Talib Ali, it is contended, had sold the property in dispute to Janki Singh, who was a stranger. Nasiran Bibi, co-sharer, then sued for pre-emption. A compromise, followed by a decree, was effected; whereby Nasiran Bibi got into possession of the property in dispute. The property having in this way passed to a co-sharer in the mahal no fresh suit for pre-emption could be brought.
2. The Court of first instance allowed this plea and held that the plaintiff had no subsisting cause of action and was not entitled to pre-empt. That Court dismissed the suit, On appeal the lower Appellate Court held that as the plaintiff Rahim Baksh was no party to the suit between Nasiran Bibi and Janki Singh, and has claimed a superior right of pre-emption, under the terms of the Wajib-ul-arz the suit was maintainable. That Court accordingly reversed the decree of the Court of first instance and has remanded the cast under Order XLI, Rule 23 for trial upon the merits. The present appeal is from that order of remand, and it is again contended that as the property in dispute has been conveyed to a co-sharer before the institution of the present suit, the plaintiff had no cause of action subsisting at the date of the institution of the suit.
3. Reliance was placed upon Hanuman Rai v. Udit Narain Rai 7 A. 917 and Liakat Husain v. Rashiduddin 3 A.L.J. 794 : A.W.N. (1906) 313. The case in Hanuman Rai v. Udit Narain 7 A. 917 is clearly distinguishable from the present case. There the suit was based upon the compromise itself. As regards the second case, we find that the suit thereby decided was one where the share had found its way into the hands of a co-sharer whose rights of pre-emption to such share were equal to those of the plaintiffs in the suit. This case can hardly be said to decide the point raised before us inasmuch as from the very beginning the other side have put in issue the question that they have a preferential right of pre-emption which ought to prevail as against Musammat Nasiran Bibi. This issue has yet to be determined. The third plea taken in the petition of appeal has not been argued before us. We dismiss the appeal with costs.