1. This litigation has bad a chequered history. It arose out of a sale which was carried out on the 16th of June 1920. The sale was of property in three villages in the Gorakhpur District and the vendors were persons against whom a decree for sale on a mortgage had been obtained. The property was sold on the date above mentioned to the decree-holders, two ladies named Mt. Chunmun Kunwar and Mt. Murat Kunwar, and in the sale-deed it was stated that although the actual value of the property sold was not more than Rs. 1,000, nevertheless as an act of grace, the purchasers were willing to give the vendors credit for the sum of Rs. 1,500 in part satisfaction of the decree existing against the vendors at that time which was on the point of execution.
2. Three suits were brought to pre-empt this sale. The first of them was brought by Jagatbali and others (Suit No. 243 of 1921). A month later two other suits were filed respectively by Basant Lal and Dhanpat Lal; Basant Lal's suit was No. 316 of 1921 and Dhanpat Lal's suit was No. 320 of 1921. All these three cases were consolidated and tried together in a Court of the Munsif. The result was that the suit of Basant Lal,. No. 316 of 1921, was dismissed altogether. He thereupon disappeared from the litigation for he did not appeal. As regards the other two suits the Munsif gave a sort of consolidated decree. He was of opinion that Jagatbali and others, the plaintiffs in Suit No. 243 of 1921, had a better right to pre-emption than the plaintiff Dhanpat Lal in Suit No. 320 of 1921, although Dhanpat Lal, he found, had also a better right to take the property than the vendees. He gave a decree providing that Jagatbali and his co-plaintiffs should, in the first instance exercise their right to pre-empt. In default of Jagatbali and his co-plaintiffs' exercising their right he declared that Jagatbali and others and the rival pre-emptor Dhanpat Lal should be entitled to pre-empt in equal share, each depositing one-half of the pre-emption money, and in default of Jagatbali and his co-plaintiffs' depositing their half-share Dhanpat Lal was to be entitled to preempt the whole. Another dispute in the Court of first instance was regarding the amount of the sale consideration. The Munsif was of opinion that the real consideration was only Rs. 1,0.00.
3. After the suit had been decided in the Munsif's Court there were two appeals to the Court of the District Judge. Mt. Chunmun Kunwar and her co-vendee appealed against the decree in Suit No. 243 of 1921, that is to say, the suit in which Jagatbali and others were plaintiffs. Mt. Chunmun Kunwar and her co-purchaser did not appeal against the decree in Suit No. 320 of 1921, in which Dhanpat Lal was the plaintiff.
4. Dhanpat Lal, on the other hand, appealed against the decree passed in his own Suit, No. 320 of 1921, but he failed to appeal against the decree in Suit No. 243 of 1921, in which Jagatbali and others were the plaintiffs, and he, Dhanpat Lal, was arrayed as a defendant. These appeals were tried out in the Court of the Additional Subordinate Judge of Gorakhpur. Second appeals were preferred against his decisions and by a judgment of the 1st of December 1924, a Bench of this Court set aside the decisions of the lower appellate Court and sent the two appeals back for retrial in accordance with law.
5. Those appeals have been re-tried though perhaps it would be difficult to say that the re-trial had been in accordance with law, And now we have these two appeals Nos. 1503 and 1504 of 1925 before us. What has been decided at this time in the lower appellate Court is that, both the appeals were barred by the principle of res judicata. The lower appellate Court has decided the case on what appears to us to be a very extraordinary ground. We have recited above that there were three rival suits for pre-emption and that one of them, the suit of Basant Lal No. 316 of 1921, was dismissed. It was held that Basant Lal had no right of pre-emption. The Judge of the lower appellate Court seems to think that, because neither the vendees nor the rival pre-emptor Dhanpat Lal appealed against the decree in the suit which was brought by Basant Lal, and which was dismissed, their appeals were barred by the principle of res judicata. In his judgment the learned Judge of the Court below refers to the principle laid down in Zaharia v. Debia  33 All. 51. In our opinion that principle could not be applied so as to defeat the appeals which were before the Court below on the principle of res judicata. Basant Lal has passed out of the litigation altogether and there is no longer any question of any rivalry between him and the other two sets of pre-emptors, and no question certainly between him and the vendees Mt. Chunmun and her co-purchaser.
6. We have to consider each case separately. Mt. Chunmun Kunwar, as we have said, appealed against the decree in Suit No. 243 of 1921, that is to say, the suit in which Jagatbali and others succeeded. We are of opinion that there was nothing in the history of this litigation to prevent Mt. Chunmun's appeal being heard as against Jagatbali. It is quite true that she did not appeal against the decree which was passed in the suit of Dhanpat Lal, Suit No. 320 of 1921, and, therefore, no question of any rights as between Mt. Chunmun and Dhanpat Lal can now be agitated. As between these parties all matters are clearly res judicata. As regards Dhanpat Lal, he appealed only against the decree in his own suit and he did not appeal against the decree in Suit No. 243 of 1921 which declared that Jagatbali had a superior right of pre-emption to him. We think, therefore, that Dhanpat Lal cannot any longer be held to agitate any question as between himself and Jagatbali.
7. Having arrived at this conclusion we now take up in the first instance Second Appeal No. 1504 of 1925, that is to say, the appeal of Mt. Chunmun Kunwar. In order to save a further re-trial of the case we have decided, after going through the record which is before us, to decide this appeal finally on the merits.
8. Mt. Chunmun Kunwar and another were the purchasers. They put up the defence that there was no custom of preemption which entitled Jagatbali and his co-plaintiffs to pre-empt. Jagatbali had set up a right of pre-emption in two out of the three villages in which the property sold is situate. He was unable to establish a custom of pre-emption existing in the third village. The wajib-ul-arz was produced and the Court of first instance, in our opinion, rightly found that Jagatbali had proved the existence of a right of pre-emption in two out of the three villages.
9. Another plea which was raised by the vendees was that even if a custom of pre-emption was found to exist then Jagatbali and his co-plaintiffs had no better right to take the property than the vendees themselves. It is admitted before us that Jagatbali and his co-plaintiffs are co-sharers in the two villages id which the custom obtains. The two vendees are only what is called 'arazidars. In the case reported in Surwan Prasad v. Basdeo Narain Singh A.I.R. 1923 All. 129 it was held that
the particular class of proprietor, called in the District of Gorakhpur an arazidar, is not a co-sharer and will not, therefore, come within the provisions of a wajib-ul-arz relating to the preemptive rights of co-sharers.
10. Applying that principle to the case before us it is clear that the vendees in this case cannot set up any right of pre-emption as against Jagatbali and his co-plaintiffs who are co-sharers. We find, therefore, that Jagatbali and his co-plaintiffs were entitled to pre-emption.
11. The only other matter to be considered is what was the proper consideration for the sale. We do not agree with the Court of first instance that the sale consideration was Rs. 1,000 only. When it is borne in mind that the vendees had a decree against the vendors for a sum in excess of Rs. 1,500, and that the decree-holders were willing to take over the property in suit at a valuation of Rs. 1.000 in satisfaction or, at any rate reduction of the decretal debt, we are not prepared to say that Jagatbali and his co-plaintiffs are entitled to have this property at Rs. 1,000, although, as a matter of fact, it may be the case that the property is not worth more than Rs. 1,000. Any person who wants to take the property from the vendees must satisfy the decree of the vendees to the same extent as the vendees were prepared to treat the same as satisfied, and so we hold that the proper consideration is Rs, 1,500. This sum has to be distributed over the two villages in which the right of pre-emption exists, and applying the ratio which was adopted in the trial Court we find that the price which Jagatbali and his co-plaintiffs in Suit No. 243 of 1921 are liable to pay is a sum of Rs. 924. So much for Second Appeal No. 1504 of 1925.
12. As for Appeal No. 1503 of 1925 (that is the second appeal of Dhanpat Lal it is not competent inasmuch as Dhanpat Lal failed to appeal against the decree which was passed in favour of Jagatbali and others in Suit No 243 of 1921. The result, therefore, is that we dismiss Second Appeal No. 1503 of 1925 with costs to the respondents including fees on the higher scale.
13. As for Second Appeal No, 1504 it is allowed in part. We vary the decree for pre-emption which has been passed, in this way namely, that we decree the claim for pre-emption of Jagatbali and others in Suit No. 243 of 1921 on condition of their paying a sum of Rs. 924 within eight weeks from the date of this Court's decree. If this money is deposited within the time limited the suit will be decreed with costs in all Courts including in this Court fees on the higher scale. In case the money is not deposited within the time limited then the suit (No. 243 of 1921) will stand dismissed with costs in all Courts including in this Court fees on the higher scale.