1. The facts connected with this appeal so far as they are material to our decision are as follows. The plaintiff is a recorded co-sharer and in possession of certain property in the mahal. He has been recorded for three years. It is conceded that if he is a 'co-sharer', he is entitled to bring the present suit for pre-emption as against a stranger. The defendant-vendee, however, contends that the plaintiff is not a co-sharer, because his vendor had no title to sell to him; on the contrary that the real owner of the share (which the plaintiff's vendor purported to sell) sold the share to him. The lower Appellate Court has held that the plaintiff being d recorded co-sharer in possession of the property and no step having been taken to set aside the sale, or to oust him from possession, he must be regarded as a co-sharer. In our opinion this view is quite correct.
2. It is next argued that the Court of first instance having found that the property, in respect of which [the plaintiff is recorded, could not be sold by the plaintiff's vendor, and that this share has vested in the defendant in the present suit, and the finding not having been set aside by the lower Appellate Court, the suit should not have been remanded. It is quitajmpossible that two persons could be the owners of the same share at the same time. In our opinion, the Court below must be taken to have set aside the finding of the Court of first instance.
3. Under these circumstances the appeal fails and is dismissed with costs.