1. These are appeals by a defendant arising out of two suits for pre-emption.
2. On the nth of June 1919 defendant No.2 Executed a sale-deed in favour of Jamuna Prasad, defendant No.1, of a certain share in Mahaban. This was followed by another sale-deed, dated the nth of May 1920, of another share in the same village. On the 12th of June 1920 a suit for pre-emption was instituted by the plaintiffs respondents to pre-empt the first sale.
3. After the written statement in that suit had been, filed Jamuna Prasad executed a deed of gift on the. 17th of August 1920 under which he transferred the shares sold Under the previous two sale deeds in favour of the idol defendant-appellant. It was after this transfer that a second suit, to pre-empt the second sale was filed on the 29th of November 1920 Subsequently, on the 14th of February 1921, Muhammad Saddiq-ul-Hussain, one of the original vendors, executed a deed which purported to be a deed of gift in favour of the defendant-appellant, The day after that; a third. suit was instituted to preempt, this transfer. The Court of first instance.1 disposed of all the three suits on the 28th of February 1931 and dismissed all the three suits. On appeal the two suits for preemption Were decreed and the, third was remanded. It is suggested before, us that the third suit was ultimately dismissed for default.
4. On behalf of the defendant it is, contended that, inasmuch as the third suit, finally failed for want of prosecution the dismissal must be. given a retrospective, effect, with the result, that the defendant appellant had become a co-sharer, by virtue of the transfer of the 14th of February 1921: and therefore, the otter suits, also wee liable to be dismissed. We may point out that the elated District Judge, in the two cases has come to a distinct finding of fact that the transfer of the 14th of, February 1921 was in reality a sale and, not a gift. If it had been a gift then* there can be no doubt that on, the, 14th of, February 1931 the defendant would have acquired a mature title as a co-sharer. On the finding, however, the transfer was only sale. The result is that on the 28th.of February 1931, when the first Court passed its decree, the defendant's right under the deed of transfer dated the 14th, of February 1921 was still being challenged and he had not become a co-sharer in the village. We think, therefore, that there cored have been no justification for the Court of first instance to dismiss the other twp suits on the sole ground that the defendant had become a co-sharer. We may point out that but for this last transfer the defendant appellant was a stranger to the makal.
5. The learned Vakil for the appellant felled on the case of Behari Lai v. Mohan Singh 55 Ind. Cas. 71 : 18 A.L.J. 220 : 2 U.P.L.R. (A.) 48 : 42 A. 268. In that case however, the defendant vendee had acquired the property under a deed of gift before the decree of the first Court was passed and which deed pf gift obviously could not have been challenged by a suit, for preemption. That case, therefore, is clearly distinguishable. In the present Case we have only got to see what decree the Court of first in stance should have passed. If the Court of first instance wrongly dismissed the claim, the plaintiff cannot be prejudiced by acquisition of title by the defendant, on a subsequent dismissal of the third suit. This was the principle accepted in the case of Sakina Bibi v. Amiran 10 A. 472 A.W.N. (1888) 170 : 13 Ind. Jur. 114 : 6 Ind. Dec. (N.S) 317. with which we agree. The result, therefore, is that the claim for pre-emption of the two previous sales cannot be defeated by virtue of the dismissal of the third suit which took place on the 29th of November 1921 long aiter the date of decree of the first Court.
6. The appeals are, in our-opinion, without force and. are hereby dismissed but without cost as no one appears for the respondents.