1. This is an appeal by the plaintiff, Pt. Shiam Sunder Lal and arises out of Original Suit No. 30 of 1935. It is connected with First Appeal No. 119 of 1936 which arises out of Original Suit No. 40 of 1935. The two suits were decided by the Court below by a single judgment and we also propose to decide the two appeals by a single judgment. The plaintiff in both the cases is Pt Shiam Sundar Lal and the defendant in both the cases is Mt. Sarmadi Begam. The suits were suits for pre-emption. The Tender in both the cases is Aftab Ahmad Khan and he sold one item of property by a sale deed dated 10th August 1934, and another item of property by a sale deed dated 23rd October 1934. The vendee Mt. Sarmadi Begam in both the cases is the wife of Aftab Ahmad Khan. Suit No. 30 of 1935 was filed on 9th August 1935 and related to the sale of 10th August 1934. Suit No. 40 of 1935 was filed on 15th October 1935 and related to the sale of 23rd October 1934. There is yet another transaction to which reference might be made at this stage, namely a deed of gift dated 27th August 1935, by one Tajjan Bibi, the mother of Aftab Ahmad Khan, in favour of Mt. Sarmadi Begam. It is conceded by Shiam Sundar Lal, the plaintiff, in his evidence in Suit No. 30 of 1935 that Mt. Tajjan Bibi has executed a deed of gift in favour of Mt. Sarmadi Begam.
2. The Court below dismissed both the suits and that is why there are two appeals before us. It is true that the two suits were tried together, but the Court below proceeded to discuss the merits of Suit No. 40 of 1935 first. It was observed that Suit No. 40 of 1935 was filed on 15th October 1935, but before that date the defendant vendee had become a cosharer in the mahal by reason of the deed of gift of 27th August 1935 to which reference has already been made, and therefore, no decree for pre-emption could be passed in favour of the plaintiff because he had not a subsisting right of pre-emption at the time of the decree in Suit No. 40 of 1935. The position, therefore, is that Suit No. 40 of 1935 was rightly dismissed by the Court below. It has been argued before us that Suit No. 40 of 1935 could not be and ought not to have been dismissed by the Court below because the deed of gift of 27th August 1935 could be assailed. When learned Counsel for the appellant was asked how the deed of gift could be assailed he said that the deed of gift was really a deed of sale and a suit for pre-emption in respect thereto could be filed. He has also assured us that a suit has actually been filed in respect of this deed of gift. There is nothing on the record of this case from which we could come to the conclusion that any such suit has been filed, nor do we know the result of that suit. So far as the evidence in the present case goes, we know that Shiam Sundar in his deposition has called the document dated 27th August 1935 a deed of gift and nothing else. We have, therefore, come to the conclusion that Appeal No. 119 of 1936 should be dismissed and we dismiss it with costs. The defendant has filed cross-objections in this appeal and the ground taken there is that the order of the Court below as to costs is arbitrary. The Court below dismissed Suit No. 40 of 1935 but gave costs of the suit to the plaintiff. The reason for costs not following the event, which is the normal course of things was that
the origin of the defendant's success was the deed of gift and that deed was executed after the plaintiff had already started litigation.
3. This does not appear to us to be any judicial reason whatsoever because the litigation that was started was not in connexion with the sale which was the subject of suit No. 40 of 1935, but a different suit altogether, namely Suit No. 30 of 1935. The plaintiff knew of both the sales and yet he chose to bring no suit in respect of the sale of 23rd October 1934 which was the subject of Suit No. 40 of 1935 before the deed of gift and therefore, there was no reason why the defendant who won should, not have been given the costs of the suit and why the plaintiff should have been given his costs. We are clearly of the opinion that the cross-objections should be allowed and that the plaintiff should not get his costs from the defendant and that on the contrary the defendant should have got his costs from the plaintiff. But when we look at the cross-objections we find that they are valued at Rs. 183-4-0 and the court-fee also has been paid on that amount. The plaintiff's costs in the Court below were Rupees 183-4-0 and the defendant's costs were Rs. 168-8-0; but as the cross-objections have been valued at Rs. 183-4-0 the utmost that we can do while allowing the cross-objections is to direct that the order of the Court below ordering that the defendant should pay the costs of the plaintiff should be deleted and that the parties should bear their own costs of the suit. We allow the cross-objections with costs.
4. We now come to First Appeal No. 117 of 1936. This is, as we said before, related to Suit No. 30 of 1935 and to the sale of 10th August 1934. The way in which the Court below has approached this case is that Suit No. 40 of 1935 having failed the defendant became a cosharer in the village by reason of the sale of 10th August 1934 and the plaintiff could not be said to have a subsisting right of pre-emption at the time when Suit No 30 of 1935 was to be decided, that is, at the time of the decree in Suit No. 30 of 1935. Learned counsel for the plaintiff-appellant has submitted that Suit No. 30 of 1935 should be deemed to be decided first as both suits were decided by means of a single judgment. In support of his contention he has drawn our attention to the Full Bench case in Murti v. Bhola Ram (1894) 16 All 165, and he invokes in aid the principle underlying that decision. In that case it was held that where two suits are filed on the same day it must fee presumed unless the contrary is proved that the suit which bears the earlier number was filed first and the submission is that on that principle the suit which bears the earlier number must be deemed to be decided first when both suits were decided on the same date. Assuming that the principle underlying the decision could be so extended there can be no doubt that it could be proved that the subsequent suit was decided earlier. If we were to look at the judgment in the present case of the Court below we find that the learned Judge discussed the merits of Suit No. 40 of 1935 first and held that Suit No. 40 of 1935 failed. He further said at another place:
Evidently Suit No. 40 of 1935 fails and the necessary result of that failure is that the vendee becomes a cosharer and acquires an indefeasible right
and therefore Suit No. 30 of 1935 also failed. In the operative portion of the judgment he says: 'Suit No. 40 of 1935 has failed on account of the deed of gift dated 27th August 1935' and 'Suit No. 30 of 1935 has failed on account of the result of Suit No. 40 of 1935.' It is impossible to say that because he has later on said that Suit No. 40 of 1935 shall be governed by the judgment in Suit No. 30 of 1935 and a copy shall be placed on both records, Suit No. 30 of 1935 was decided first. Looking at the sequence of the judgment and the way in which the mind of the Judge worked while deciding these two cases there can be no manner of doubt that he decided Suit No. 40 of 1935 first. The case might be looked at in another way and from that aspect also the decision of the Court below is correct. Section 19, Agra Pre-emption Act, says that
no decree for pre-emption shall be passed in favour of any person unless he has a subsisting right of pre-emption at the time of the decree....
5. Now when Suit No. 30 of 1935 was being heard it was open to the defendant to say that he had acquired an indefeasible interest in the mahal by virtue of the sale deed of 23rd October 1934. The answer of the plaintiff would then have been that the sale deed of 23rd October 1934 has been made the subject of a pre-emption suit. The rejoinder of the defendant would then have been that suit is bound to be dismissed because of the deed of gift of 27th August 1935, and to that there could be no answer by the plaintiff who, as we said before, has admitted in the present litigation that a deed of gift has been executed by Mt. Tajjan Bibi in favour of the defendant vendee. In the Full Bench case Tara Chand v. Radhaswami Satsang Sabha : AIR1934All343 , it was observed that
the word 'indefeasible' in Section 20, Agra Pre-emption Act cannot be token to have the restricted meaning of 'not being liable to pre-emption' but has its ordinary though wider meaning of incapable of being defeated, or not liable to be defeated.
6. It would thus appear that the argument of the defendant would have prevailed because the sale of 23rd October 1934 was incapable of being defeated on any suit for pre-emption being filed after the deed of gift dated 27th August 1935. The defendant had thus acquired an indefeasible interest in the mahal by virtue of the sale of 23rd October 1934 and the plaintiff's Suit No. 30 of 1934 was liable to be dismissed. We think the decision of the Court below is correct so far as this suit also is concerned and we dismiss First Appeal No. 117 of 1936 with costs.