Skip to content


Rohan Singh Vs. Bhao Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in3Ind.Cas.42
AppellantRohan Singh
RespondentBhao Lal and ors.
Excerpt:
pre-emption - vendee stranger at the date of institution of suit becoming a co-sharer subsequently--crucial date is the date of institution of suit--date of decree. - - from the facts which we have stated it will appear that the plaintiff had a good cause of action not only at the time of the sale and at the institution of the suit but also at the time when decrees in his (sic) ought to have been made by the (sic) of first instance and by the court or first appeal......of the institution of the suit was the crucial date and that if the plaintiff was able at that time to fulfil the conditions necessary to entitle him to a decree, a decree ought to be made in his favour. see the cases of bhagwan das v. mohan lal 25 a. 421; ram rit singh v. narain rai 26 a. 389; naraiii singh, v. parbat singh 23 a. 247; ghasitey v. gobind das 30 a. 467; serh mal v. hukam singh 20 a. 100; nasir mi khan v. natho bihi a.w.n. 1906 p. 215; nabihan bibi v. kaleshar rai a.w.n. 1907 p. 110. even if we assume, however, that the plaintiff must fulfil the conditions of custom or contract at the date of the decree the plaintiff in the present case did fulfil the conditions at the date on which a decree in his favour ought to have been made, namely, on the 22nd december 1904 and.....
Judgment:

1. This appeal arises out of a suit for pre-emption. The sale which gave rise to the alleged right took place on the 11th of September 1903. The present suit was instituted on the 10th of September 1904. The Court of first instance dismissed the plaintiff's suit on the 22nd of December 1904 on the sole ground that the Court-fee paid was insufficient. The District Judge confirmed this decree of the Court of first instance on 11th April 1905. On the 25th of March 1907 the High Court set aside the decrees of both the lower Courts holding that the Court fee was sufficient and. remanded the case to be disposed of on the merits. The only evidence of the custom of pre-emption was an extract from the wajih-ul-arz which provided that if any co-sharer wanted to dispose of his share he must in the first instance offer it to a co-sharer and then he might sell it to a stranger. For the purposes of this appeal we must consider that at the time of the sale and of the institution of the suit and also at the dates of the decrees of the Subordinate Judge and the District Judge mentioned above the plaintiff was a co-sharer and the defendant vendee a stranger. It, however, appears that on the 7th of January 190G the defendant vendee became a co-sharer in the village and in the sense of the wajib-ul-arz was no longer a stranger. When, therefore, the case came back to the Subordinate Judge for decision on the merits the defendant vendee filed an amended written statement in which he set forth the sale to him of the 7th of January 11906, and submitted that by virtue thereof he was not now a stranger and that the plaintiff's suit should be dismissed. This contention having found favour with both the Courts below the plaintiff comes here in second appeal. From the facts which we have stated it will appear that the plaintiff had a good cause of action not only at the time of the sale and at the institution of the suit but also at the time when decrees in his (sic) ought to have been made by the (sic) of first instance and by the Court or first appeal. It is contended on behalf of the respondents that the present case is concluded by the ruling in Ram Gopal v. Pidri Lal 21 A. 441. In that case, however, proceedings for partition were pending before the plaintiff's suit was filed and the partition proceedings were completed before the Court came to make its decree with the result that the plaintiff had no longer the status which would entitle him to preempt the property. The Court, therefore, dismissed his suit. It is necessary to point out that the facts of that, case very materially differed from the facts of the present case. The plaintiff in the case cited had, by virtue of the partition which bound all persons in the village, lost his rights; and those partition proceedings had been instituted before the pre-emption suit was started. In the present case the plaintiff's position is just the same as it was when he instituted his suit. He was a co-sharer then and he is a co-sharer now. It is the defendant vendee's position which has been altered He has become a co-sharer a status which he did not occupy at the date of the sale, nor at the date of the institution oh the; suit, nor at the date when a decree tin favour of the plaintiff ought to. have been made The decision in Ram Gopal v. Pieri Lal 21 A. 441 was given on the 14th of June 1899 and on the 15th of May of the same year a Full Bench of this Court had before it much the same question in the case of Janki Prasad v. Ishar Das 21 A. 374. In that case it was held that a person in order to enforce a right of pre-emption-must fulfil the conditions and the custom must subsist not only at the time of the sale but also at the time when the suit is instituted. The Court, however, expressly declined to consider what the result would be where the plaintiff had fulfilled the conditions at the time of the institution of the suit but was unable to fulfil them at the date of the decree. That being so we think it extremely unlikely that a Bench of two Judges could have intended to decide the question which the Full Bench had left undecided and in a case in which that question did not strictly arise. With the exception of the observations in the case of Ram Gopal v. Pieri Lal 21 A. 441 the decisions all seem to show that it has been the opinion of this Court that the date of the institution of the suit was the crucial date and that if the plaintiff was able at that time to fulfil the conditions necessary to entitle him to a decree, a decree ought to be made in his favour. See the cases of Bhagwan Das v. Mohan Lal 25 A. 421; Ram Rit Singh v. Narain Rai 26 A. 389; Naraiii Singh, v. Parbat Singh 23 A. 247; Ghasitey v. Gobind Das 30 A. 467; Serh Mal v. Hukam Singh 20 A. 100; Nasir Mi Khan v. Natho Bihi A.W.N. 1906 p. 215; Nabihan Bibi v. Kaleshar Rai A.W.N. 1907 p. 110. Even if we assume, however, that the plaintiff must fulfil the conditions of custom or contract at the date of the decree the plaintiff in the present case did fulfil the conditions at the date on which a decree in his favour ought to have been made, namely, on the 22nd December 1904 and he continued to fulfil the conditions when the case came before the Court of first appeal. We think that it would be contrary to all justice to hold that because the Court of first instance and the Court of first appeal made an erroneous decision, the plaintiff should be denied a decree, which, it must be admitted for the purposes of this appeal, he was entitled to. The learned Counsel on. behalf of the respondents lifts been obliged to admit that if the Subordinate Judge on the 22nd December 1904 had made a decree in the plaintiff's favour no subsequent purchase of a share in the village by the defendant vendee could have interfered with the plaintiff's rights. We think that even if the date of the decree were to be considered as regulating the rights of the plaintiff pre-emptor it must be the date on which a decree in the plaintiff's favour would have been made but for the error of the Court and not the date on which the error having been corrected the case came back to the Court to be dealt with on the merits. Under the circumstances of the case we think it unnecessary to express an opinion as to what would have been the result if the plaintiff had lost his right of preemption by not fulfilling the condition after the institution of the suit and before the case came back to the Court for disposal in the ordinary course. We allow the appeal, sot aside the decrees of both the Courts below and remand the case to the first Court through the lower appellate Court with directions to readmit it to its original number in the register and to dispose of it on the merits. The appellant will have his costs, in this Court including fees on the higher scale. Other costs will abide the result.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //