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Raj NaraIn Rai Vs. Dunya Pande and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in5Ind.Cas.527
AppellantRaj NaraIn Rai
RespondentDunya Pande and ors.
Excerpt:
pre-emption - rival pre-emptors--decree in favour of inferior pre-emptor superior pre-emptor was no party--subsequent suit by superior pre-emptor is not barred--right of pre-emption not a right of re-purchase but a right of substitution. - .....the sale-consideration-as being rs. 1,500 according to the, specification in the sale-deed. the present suit was brought on december 17th, 1907, in the court of the munsif of muhammadabad; it was expressly pleaded that the sale consideration specified in the sale-deed of december 20th, 1906, was fictitious, the correct amount being estimated at rs. 400 only. the defendants nos. 6 to 19 were impleaded as rival pre-emptors, but the plaintiff stated his cause of action as having arisen on december 20th, 1908, and also on november 29th 1907, the date of the decree in favour of dunia pande. the present plaintiff was not a party to either of the previous suits. the learned munsif held that in view of the plea regarding the actual amount of the consideration, he had jurisdiction to entertain.....
Judgment:

1. These are two connected appeals arising out of a suit for pre-emption. There are four distinct parties concerned. The first two defendants are the vendors, and they have sold a certain share in a mahal to defendants Nos. 3, 4 and 5 who are strangers. The defendant No. 6 (Dina or Dunia Pande) and defendants Nos. 7 to 19 (Mahadeo Rai and others) are rival pre-emptors. The sale by 'the vendors' to the vendees took; place On December 20th, 1906, the consideration stated in the deed of sale being Rs. 1,500. On October 21st, 1907, Dina or Dunia filed a suit for pre-emption in the' Court of the Subordinate Judge of Ghazipur and On November 29th, 1907, that Court gave him a decree for pre-emption in respect of 1/14th of the property concerned. The second set Of pre-emptors, Mahadeo Bai and others, filed their suit in the Court of the Munsif of Mohammadabad on October 29th, 1907, their plaint was returned to them on December 14th 1907, for presentation in the Court of the Subordinate Judge; it was presented accordingly on December 16th, 1907, and the claim of Mahadeo Rai and others decreed in respect of the remaining 13/14th of the property sold on December 23rd, 1907. The plaintiff in both these suits accepted the sale-consideration-as being Rs. 1,500 according to the, specification in the sale-deed. The present suit was brought on December 17th, 1907, in the Court of the Munsif of Muhammadabad; it was expressly pleaded that the sale consideration specified in the sale-deed of December 20th, 1906, was fictitious, the correct amount being estimated at Rs. 400 only. The defendants Nos. 6 to 19 were impleaded as rival pre-emptors, but the plaintiff stated his cause of action as having arisen on December 20th, 1908, and also on November 29th 1907, the date of the decree in favour of Dunia Pande. The present plaintiff was not a party to either of the previous suits. The learned Munsif held that in view of the plea regarding the actual amount of the consideration, he had jurisdiction to entertain this suit; he found that the present plaintiff had under the terms of the wajib-ul-arz a superior pre-emptive right to any of the defendants Nos. 6 to 19; he held that the plaintiff's rights would not be affected by the result of either of the previous suits to which he was not a party; finally, he found the actual sale consideration to have been Rs. 800 and he gave the plaintiff a decree accordingly. The defendants Nos. 7 to 19 submitted to this decree but separate appeals were filed in the Court of the District Judge of Ghazipur by the defendants-vendees and by the rival pre-emptors Dunia (or Dina), defendant No. 6. The learned District Judge held that no decree for pre-emption could be passed in favour of the present plaintiff after the dates of the two decree in favour of the two rival sets of pre-emptors. He accordingly, without deciding any of the other points in issue, accepted the appeals and dismissed the plaintiff's suit. The latter comes to this Court in second appeal, and is virtually opposed by the defendant No. 6 (Dunia) only. The defendants Nos. 7 to 19 and the defendants-vendors have not appeared at all in this Court while the defendants-vendees have appeared only to plead that they ought to be exempted from all costs.

2. The decision of the learned District Judge rests entirely on the ruling of this Court in Abdur Razzaq v. Mumtaz Hossein 25 A. 334. Now in that case it is clear that what the learned Judges of this Court held to be the insuperable difficulty in the way of the plaintiff was that he had been a party to the previous suit for pre-emption, and might have sought his remedy by way of appeal from the previous decree. It is true they went on to add that they could find no authority for the proposition that a right of pre-emption arises upon the transfer of property by virtue of a decree in a suit for pre-emption, but we are not really concerned in the present case with the truth or otherwise of this proposition. The suit is really based on the original transfer by voluntary sale, and is brought within the prescribed period of limitation from the date of the same. We were referred in the course of argument to sundry other rulings, none of which appear strictly relevant to the point now in issue. For instance in Serh Mal v. Hukum Singh 20 A. 100, it was held that a re-sale by a stranger to a co-sharer having equal rights with the party seeking pre-emption would extinguish the said party's right; but in the present case apart from the broad distinction between a re-sale and the substitution of a new purchaser for the original vendee under a decree for pre-emption, the whole point of the plaintiff-appellant's claim is that he has a right of pre-emption superior to that of any of the rival pre-emptors. We were referred also to an unpublished decision of this Court in Alladad Khan v. Munshi Abdul Hakim' (S.A. No. 724 of 1906 decided on April 15th, 1907), in which it was held in effect that when there has been a re-sale by the original vendee before any suit for pre-emption had been instituted, a person seeking to enforce a right of pre-emption must claim to pre-empt both sales. It is clear, however, that a right of pre-emption is not a right of re-purchase but a right of substitution for the original vendee vide Gov hid Dayal v. Inayatullah 7 A. 775, There has not been under the decrees in favour of the rival pre-emptors any fresh transfer in their favour, they have been put in the places of the original vendees. Those vendees acquired by their purchase a valid title but one subject to the exercise of the right of pre-emption by any person possessed of such right. The defendants Nos. 6 to 19 have stepped into the shoes of these vendees, and if the plaintiff in fact has a right of pre-emption superior to theirs and claims to exercise it within the period of limitation allowed by the law from the date of the original sale, there seems no reason for holding that his right has been extinguished by the fact that decrees have been passed in favour of these defendants in two suits to which the plaintiff was not a party. In another case in this Court, Muhammad Latif v. Gobind Singh 5 A. 382, a suit very similar to the present was allowed to succeed. The actual decision as reported is upon a different point, but that the fact that a pre-emption decree in virtue of which certain persons had stepped into the places of the original vendees would not bar a subsequent suit for pre-emption on the original sale was taken for granted. It was strongly urged upon us in argument on behalf of Duma Pande that the plaintiff had no cause of action against this defendant except upon the latter's decree of November 29th, 1907. In any case this argument does not apply to the defendants Nos. 7 to 19, who had not obtained any decree at all at the time when the present suit was filed. The way in which these defendants got their suit in the Court of the Subordinate Judge rushed through is certainly peculiar and suggestive of collusion, and, as we have already pointed out, they have submitted to the decree of the Munsif's Court in the present case and have put in no appearance in this Court. The answer, however, to the argument on behalf of the defendant-respondent Dunia seems to be in the fact that he was really impleaded along with defendants Nos. 7 to 19 simply as a rival pre-emptor. The plaintiff had a cause of action as against all the defendants Nos. 6 to 19 from the date when they formally set up their respective claims to pre-emption regarding the sale-deed of December 20th, 1906, by filing suits to that effect; the point may not have been taken with sufficient clearness in the plaint, but this can hardly be said to effect the plaintiff's right to succeed. We, therefore, accept these appeals, set aside the decrees of the lower appellate Court and remand the suit to that Court for disposal under the provisions of Order XLI, Rule 23 of the Civil Procedure Code of 1908. As regards costs we think it proper to order that Dunia (or Dina) shall pay the costs of the plaintiff-appellant in this Court including fees on the higher scale, and that the defendants vendees bear their own costs.


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