1. We think the decision of the learned District Judge in this case is erroneous and must be set aside.
2. The facts are that a suit for pre-emption was brought by two plaintiffs Gobardhan Brahman and Raghubar Thakur, in respect of a certain sale of property which had been made by defendant No. 3. The allegation was that this sale had been made to a stranger and that the plaintiffs had a right to pre-empt.
3. When the case came into Court the defence taken was that the first plaintiff in the suit was not a co-sharer and, therefore, not entitled to claim pre-emption.
4. It seems to have been admitted that prior to the 10th of July 1917 the first plaintiff Gobardhan Brahman had no share in this village. On the 10th July 1917 there was executed in his favour a deed which purports to be a sale-deed. This was executed apparently by one Gaya Din Thakur, father of plaintiff No. 2, Raghubar Thakur.
5. On the following day, i.e., the 11th July 1917, another document was executed by Gobardhan, the purchaser, by which he agreed to allow his vendor of the previous day an option to have a re-conveyance of the property.
6. With respect to this transaction the allegation in the written statement was that it amounted only to a mortgage in favour of the first plaintiff and that, consequently, this plaintiff could not claim the status of a co-sharer in this village. Then it was further pleaded that Raghubar who had admittedly been a co-sharer in the village having joined a stranger, namely, this plaintiff No. 1, in his suit for preemption the whole suit was liable to be dismissed.
7. The plaintiff No. 1, on the other hand, relied upon the two documents to which we have referred for the purpose of showing that he had acquired the status of a co-sharer by purchase and his case was that the two documents were evidence of a sale and not merely of a mortgage as pleaded by the defendants.
8. The Court of first instance found in favour of the defendants. The learned Subordinate Judge, construing the documents of the 10th and 11th of July 1917, respectively, was of opinion that, taken together, they constituted merely a mortgage of the property and not a sale. He consequently held that the first plaintiff was a stranger and that the second plaintiff, although a co-sharer, could not have a decree for pre-emption having joined in his suit a person who was a stranger to the village.
9. In appeal the learned District Judge has reversed the position of these two plaintiffs. He has held in effect that the documents of the 10th and 11th July 1917 are evidence of a sale and not of a mortgage and so he has come to the conclusion that the plaintiff No. 1 is a co-sharer. This finding necessitated his also finding, as he does find, that the plaintiff No. 2 by reason of this sale had become a stranger to the village. 'We take this to mean that after this transaction was concluded the plaintiff No. 2 retained no other interest in the village. In both Courts this fact seems to have been assumed and we are not prepared to allow any argument to be raised about it now.
10. Notwithstanding the learned Judge's finding that the plaintiff No. 1 was a co-sharer and the plaintiff No. 2 a stranger he has reversed the decree of the Court of first instance and sent the case back for disposal on the remaining issues. The view of the learned Judge was that, in the circumstances of the case, the suit was not liable to be dismissed merely because it had been found by him that the second plaintiff in the case had become a stranger by reason of the transaction of 1917. He was referred to the case of Bhupal Singh v. Mohan Singh 19 A. 324 ; A.W.N. (1897) 72 : 9 Ind. Dec. (N.S.) 212 in which it was laid down that where plaintiff having a right to pre-empt joins with himself in a suit for pre-emption a1 stranger, i.e., a person who has no such right, he thereby forfeits his right to pre-empt and this disability cannot be overcome by amending the plaint by striking out the name of the stranger.
12. The learned Judge attempted to distinguish the present case from that case, but we are unable to follow him in the reasons which he has given. It is plain, on all hands, that if the learned Judge's interpretation of the transaction of 10th July 1917 is correct, it must be held that from the 11th July 1917 the date on which the latter of the two deeds was executed the second plaintiff became a stranger while Gobardhan Brahman became a Co-sharer by reason of what the learned Judge holds to be a purchase. This suit was filed three years after this position arose and we cannot agree with the learned Judge that, in the circumstances, it ought to be held that the suit was not liable to dismissal. The case is fully covered by the ruling of this Court to which we have referred and we find accordingly. The result is, therefore, that we allow this appeal, set aside the order of the learned District Judge and restore the decree of the Court of first instance. The appellants are entitled to their costs both in the lower Court and in this Court.