1. The appellant here was a plaintiff in the Court of first instance and the suit was a suit for pre-emption in respect of a sale carried out by a deed dated the 22nd of May 1923. Having regard to date of the sale it is clear that the provisions of the Agra pre-emption act, U.P. Act, 11 of 1922, governed the case. By this sale-deed the Defendants Nos. 4 to 8 purported to transfer certain shares in three khatas, Nos. 4, 2 and 20, to the Defendants Nos. 1, 2 and 3.
2. The plaintiff came into Court and asked for pre-emption of the share situated in Khata No. 4. He declared in his plaint that he was not entitled to any preferential right of purchase in respect of the shares in Khatas Nos. 2 and 20. In the first paragraph of his plaint the plaintiff alleged that he was a co-sharer with the vendor in Khata No. 4. He admitted that the 1st defendant Mohar Gobind Rai, was a co-sharer in Nos. 2 and 20 but he alleged that this defendant had no share in Khata, No. 4. As regards the second and third defendants, named, respectively, Inderjit Govind Rai and Bindeswar Prasad Govind Rai, the allegation of the plaintiff was that these two defendants were entire strangers that is to say, had no share in the village. In the 4th paragraph of his plaint the plaintiff alleged that the price set out in the sale deed was fictitious, and he fixed the real price of the share in Khata No. 4 which he was liable to pay in the event of his getting a decree at Rs. 320. In the 6th paragraph of his plaint the plaintiff stated that as regards the shares in Khatas No3. 2 and 20, he had no better right than the Defendant No. 1, and it was for this reason that he did not seek pre-emption of the shares situated in those khatas.
3. The suit was resisted by the vendees, Defendants Nos. 1 to 3. They admitted that the plaintiff was a co-sharer in Khata No. 4. but they denied that the Defendants Nos. 2 and 3 were strangers to the village. It was stated that these two defendants, together with Defendant No. 1 constituted a joint Hindu family. Other pleas were raised and finally a plea was taken in the 8th paragraph of the further pleas to the effect that the plaintiff's suit was bad for relinquishment of a portion of the claim, namely, with respect to the land situated in Khatas Nos. 2 and 20. It was pleaded that for this reason the plaintiff's suit should be dismissed. The first Court framed issues, the second of which was 'Are the Defendants Nos. 2 and 3 strangers?' The 6th issue was: 'Is the suit bad for partial pre-emption'? Neither party gave any evidence. The Subordinate Judge who tried the suit dealt with Issue No. 2 in a rather curious way. No evidence, as we have said, was produced, but the learned Subordinate Judge decided this issue in the following sentence:
It is plaintiff's own case that the Defendants Nos. 2 and 3 are strangers to the village in suit. I decide the issue accordingly.
4. We do not think that this was proper procedure on the part of the Subordinate Judge. Dealing with Issue No. 6 the Subordinate Judge was of opinion that the plea raised by the defendants-vendees was a good plea and that the suit was not maintainable. The Subordinate Judge was of opinion that on the allegations set out in the plaint it was clear that the plaintiff was bound to seek pre-emption of the whole of the property which was conveyed under the sale-deed and in this connexion Section 22 of the Agra Pre-emption Act was cited. This section lays down that where property is jointly purchased or foreclosed by two persons against one of whom only there is right of pre-emption, such right may be claimed as against both, The Subordinate Judge dismissed the suit accordingly and his decree has been maintained in appeal by the District Judge.
5. In second appeal it is pleaded that the suit was not liable to be dismissed on the ground just stated. In our opinion this contention cannot succeed. There can be no question that the contesting defendants had the right to take the legal objection that the suit, as framed by the plaintiff, was not maintainable; and indeed, regard being had to the provisions of Order 8, Rule 2, the defendants were bound to raise this plea if it could be raised. Order 8, Rule 2, lays down that the defendant must raise by his pleading all matters which show the suit not to be maintainable, etc. It is true that the raising of this plea introduces an inconsistency into the defendants' pleadings for they had already traversed the allegation of the plaintiff that the Defendants Nos. 2 and 3 were strangers to the village. However that may be, it being the duty of the defendants to raise any plea, they had to show that the suit was not maintainable. It was also the duty of the Court to take cognizance of it and to decide it.
6. We are of opinion that on the allegations contained in the plaint the plaintiff was bound to claim pre-emption of the entire property. That is clearly the result of the provisions of Section 22 of the Agra Pre-emption Act. We hold, therefore, that the plaintiff's suit was properly dismissed and we dismiss this appeal with costs including fees on the higher scale.