Lindsay and Sulaiman, JJ.
1. These are appeals by, a defendant arising out of two suits for pre-emption.
2. On the 11th of June, 1919, defendant No. 2 executed a sale-deed in favour of Jamuna Prasad, defendant No. 1, of a certain share in Mahaban. This was followed by another sale-deed, dated the 11th of May, 1920, of another share in the same village. On. the 12th of June, 1920, a suit for pre-emption was instituted by the plaintiffs respondents to pre-empt the first sale. After the written statement in that suit had been filed, Jamuna Prasad executed a deed of gift on the 17th of August, 1920, under which he transferred the share sold under the previous two sale-deeds in favour of the idol, defendant appellant. It was after this transfer that a second suit to pre-empt the second sale was filed on the 29th of November, 1920. Subsequently, on the 14th of February, 1921, Muhammad Siddiq-ul-Husain, one of the original vendors, executed a deed which purported to be a deed of gift in favour of the defendant appellant. The day after that, a third suit was instituted to pre-empt this transfer. The court of first instance disposed of all the three suits on the 28th of February, 1921, and. dismissed all the three suits. On appeal the first two suits for pre-emption were decreed and the third was remanded. It is suggested before us that the third suit was ultimately dismissed for default.
3. On behalf of the defendant it is contended that inasmuch as the third suit finally failed for want of prosecution, the dismissal must be given a retrospective effect with the result that the defendant appellant had become a co-sharer by virtue of the transfer of the 14th of February, 1921, and, therefore, the other suits also were liable to be dismissed. We may point out that the learned District Judge in the two cases has come to a distinct finding of fact that the transfer of the 14th of February, 1921, was in reality a sale and not a gift. If it had been a gift then there can be no doubt that on the 14th of February, 1921, the defendant would have acquired a mature title as a co-sharer. On the finding, however, the transfer was only a sale. The result is that on the 28th of February, 1921, when the first court passed its decree, the defendant's right under the deed of transfer, dated the 14th of February, 1921, was still being challenged and he had not become a co-sharer in the village. We think, therefore, that there could have been no justification for the court of first instance to dismiss the other two suits on the sole ground that the defendant had become a co-sharer. We may point out that but for this last transfer the defendant appellant was a stranger to the mahal.
4. The learned vakil for the appellant relied on the case of Bihari Lal v. Mohan Singh (1920) I.L.R. 42 All. 268. In that case, however, the defendant vendee had acquired the property under a deed of gift before the decree of the first court was passed, and which deed of gift obviously could not have been challenged by a suit for pre-emption. That case, therefore, is clearly distinguishable. In the present case we have only got to see what decree the court of first instance should have passed. If the court of first instance wrongly dismissed the claim, the plaintiff cannot be prejudiced by acquisition of title by the defendant, on a subsequent dismissal of the third suit. This was the principle accepted in the case of Sakina Bibi v. Amiran (1888) I.L.R, 10 All. 472, with which we agree. The result, therefore, is that the claim for pre-emption of the two previous sales cannot be defeated by virtue of the dismissal of the third suit' which took place on the 29th of November, 1921, long after the date of decree of the first court.
5. The appeals are, in our opinion, without force and are hereby dismissed, but without costs as no one appears for the respondents.