1. These two appeals raise the question of the proper interpretation of Section 12 of the Agra Pre-emption Act.
2. The plaintiff Faiz-ul-Hasan brought two separate suits for pre-emption in respect of two separate sets of items of property situated in mauza Nawada, mahal Baqi Manda, patti Muhammad Haji, Khewat No. 1.
3. In each case the plaintiff claimed preemption on the ground that he was a co-sharer in the mahal. It has been found by the Courts below that the plaintiff is in fact a co-sharer in the mahal and is also the lambardar, and it is further found that he is a cousin of the vendor.
4. The plots of land which were sold in these sale-deeds were specified as separate plots situated in the khewat mentioned above. The vendees resisted the claim and put forward the case that they had as good a right of pre-emption as the plaintiff. In the lower appellate Court the point seems to have been taken on behalf of the vendees that the interests sold under each of these sales were petty proprietary interests and that the plaintiff had no right to pre-empt regard being had to the provisions of Section 12 of the Pre-emption Act, Sub-section (1). Class 1,
5. It is clear on all hands that the property sold is situated in patti Muhammad Haji of mahal Baqi Manda. Neither party is a co-sharer in that particular patti. It is proved that they are co-sharers in another patti of the same mahal and we have already mentioned that the plaintiff is the lambardar of the same mahal and is a cousin of the vendor. The Court of first instance decreed the plaintiff's claim and on appeal that decision has been affirmed by the lower appellate Court.
6. The first ground taken here in appeal is that the lower appellate Court was wrong in holding that the properties sold in these two sales were not petty proprietary interests. The Subordinate Judge was of opinion that although the sale-deeds purported to transfer specified plots, nevertheless those plots were not petty proprietary interests within the definition contained in Section 4. The reasons given in support of this decision by the lower appellate Court seem to us to be sufficient and we think the Subordinate Judge was right in holding that the land sold did not constitute merely what is known as petty proprietary interest. Assuming, however, that it is possible to treat these sales as being sales of a petty proprietary interest we are still of opinion that the decision of the Court below is correct and that the suits were bound to succeed.
7. It is argued in the second ground of appeal taken before us that the terms of Section 12, Sub-section (1), preclude the enforcement of these claims. The argument is put in this way: It is said that Class 1 specified in Section 12, Sub-section (1), relates to the case of a sale of a petty proprietary interest and it is sought to be argued that the only person who can enforce a right of pre-emption in respect of such a sale is a person who is a coparcener in such interest. In other words it is contended where no coparcener in the petty proprietary interest comes forward to seek, pre-emption, no suit for pre-emption on behalf of any of the persons specified in classes 2 to 5 of Section 12, Sub-section (1), can lie. We are of opinion that this argument cannot prevail. The scheme of pre-emption laid down in Section 12, Sub-section (1) clearly contemplates the successive exercise of rights of pre-emption, so that where no claim of pre-emption is brought by any one who falls within class 1 a right to enforce pre-emption can be enforced successively by those persons who fall within the following classes, We think this construction of Section 12 is made clear by the terms of Section 11. It follows, therefore, that even if we were to hold in favour of the appellants here that the interests which were transferred by these two sale-deeds were petty proprietary interest, the plaintiff was nevertheless entitled to succeed.
8. The only other question raised in the memorandum of appeal is concerned with the language of Section 12, Sub-section (3), of the Act, This sub-section lays down:
Where there are more persons than one of the class claiming pre-emption, that from the common ancestor, but not removed by more than four degrees, including the common ancestor, shall be entitled to pre-emption as against other persons of the same class,
9. We have already pointed out that it has been found as a fact that the plaintiff in this case is a cousin of the vendor.
10. It is sought to be argued that Sub-section (3) cannot be applied to these cases, because it is said that the defendants vendees are not 'claiming pre-emption' within the meaning of Sub-section (3) of Section 12 It has, however, been held several times that a defendant who is resisting a suit for pre-emption on the ground that he has a good a right of pre-emption as the plaintiff is 'claiming pre-emption' within the meaning of this sub-section-Ishwar Dat v. Mahesh Dat : AIR1925All747 . This decision has been followed in subsequent cases.
11. Both appeals fail and we dismiss them accordingly under 0. 41, Rule 11 of the Code of Civil Procedure.