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Bhagwati Saran Man Tewari Vs. Parmeshar Das and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in25Ind.Cas.283
AppellantBhagwati Saran Man Tewari
RespondentParmeshar Das and ors.
Cases ReferredIn Gandharp Singh v. Sahib Singh
Excerpt:
pre-emption suit - alternative claim for possession as full owner--pleadings--inconsistent pleadings--practice. - .....of pre-emption.2. janki saran is the father of the plaintiff and they apparently are members of a joint hindu family. another suit for pre-emption was brought by sheobaran alleging himself to be a co-sharer having a right of preemption under the custom. each of the two pre-emptors was made defendant to the suit by his rival. in the meanwhile parmeshar das brought a suit for possession of the 'property against janki saran and his sons and that suit has been decreed. but the question of pre-emption was not decided.3. the court below has dismissed the plaintiff's suit on the sole ground that the plaintiff cannot maintain the suit for preemption because he claimed a right of possession as full owner.4. in our opinion this decision was wrong. there was no reason why the plaintiff should not.....
Judgment:

1. This appeal arises out of a suit for pre-emption. It appears that Janki Saran, the father of the plaintiff, purchased a certain share in the village from one Musamniat Moti Rani, a Hindu widow. 'A further share was acquired by Janki Saran by auction-purchase in a sale in execution of a decree against the same Musammat Moti Rani. After the death of Moti Rani a person claiming to be the reversioner (Dwarka Das) sold the property to one Parmeshar, ignoring the sale by the widow and the auction-sale in execution of the decree. Then the plaintiff instituted the present suit, claiming, first, a declaration that he was entitled to possession by virtue of the sale by Moti Rani and the auction-purchase and, secondly, to pre-empt the property by virtue of a custom of pre-emption.

2. Janki Saran is the father of the plaintiff and they apparently are members of a joint Hindu family. Another suit for pre-emption was brought by Sheobaran alleging himself to be a co-sharer having a right of preemption under the custom. Each of the two pre-emptors was made defendant to the suit by his rival. In the meanwhile Parmeshar Das brought a suit for possession of the 'property against Janki Saran and his sons and that suit has been decreed. But the question of pre-emption was not decided.

3. The Court below has dismissed the plaintiff's suit on the sole ground that the plaintiff cannot maintain the suit for preemption because he claimed a right of possession as full owner.

4. In our opinion this decision was wrong. There was no reason why the plaintiff should not put his case in the alternative. Had he not done so, it might strongly be urged that he was bound to put forward every ground of attack available. In Gandharp Singh v. Sahib Singh 7 A. 184 (F.B.) : A.W.N. (1884) 326 a sale was made to certain members of a joint Hindu family some of whom were not recorded as co-sharers. A suit for pre-emption was brought by a person claiming to be a co-sharer who alleged that the vendees were strangers. A Full Bench held that the vendors (being members of a joint Hindu family, which joint Hindu family was entitled to a share in the village) must be regarded as co-sharers, and not as strangers, and the suit of the plaintiff was dismissed. In the present case it is admitted that the family to which the plaintiff belongs owned a three-anna share. Consequently if we apply the principle laid down in the case referred to above, the plaintiff is a co-sharer and would be entitled to pre-empt the property, provided that no one else has a preferential right. If his right of preemption is equal, he would be entitled to a decree in part. All these matters must be decided by the Court below. We accordingly set aside the decree of the learned Additional District Judge and remand the case with directions to re-admit the appeal and proceed to hear and determine the same according to law, having regard to what we have stated above. The costs here and heretofore will be costs in the cause.


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