1. This appeal arises out of a suit for pre-emption. The plaintiff came into Court alleging that he was a co-sharer in the same khata as the vendor while the vendees were more distant co sharers. He then alleged that, according to the custom of pre-emption prevailing in the village, a near' co-sharer had a preferential right over a more distant co-sharer. It is quite clear that the plaintiff was alleging nearness in space as distinguished from nearness of relationship. The Court of first instance originally found that the custom of pre-emption was not proved and that the wajib-ul-arz was an entry of a contract and not of a custom and dismissed the suit. The plaintiff appealed and the lower Appellate Court held that the custom of pre-emption was proved. We think that this ought to be taken as a finding that the particular custom alleged by the plaintiff in fact existed. When the case came before the Court of first instance a second time on remand, it erroneously went into the question of the custom a second time. It framed an issue as to whether a custom prevailed. It then went on to find the issue in favour of the plaintiff upon the ground that this very matter had been decided by the lower Appellate Court. The Court then went into the question whether or not the plaintiff had a preferential right over the defendants-vendees, that is to say, the meaning of the reference to nearness and found in favour of the plaintiff. We think that it ought never to have gone into this matter having regard to the finding of the lower Appellate Court. All that it had to do was to find whether or not the plaintiff was, as he alleged, a co-sharer in the same khata as the vendor. However, we do not think that any injustice was done because the claim was decreed and we think that the Court was quite justified in finding on the evidence that the custom as set forth in the wajib-ul-arz gave a preferential right to a co-sharer who was nearer in space, The defendants again appealed. The lower Appellate Court decided in favour of the defendants but not upon the ground of the non-existence of the custom.
2. It appears that before the sale which gave rise to the present claim, partition proceedings had commenced. Before the order of remand and after the first decision of the Munsif, the partition came into force with the result that the plaintiff ceased to be a co-sharer in the same khata with the vendor. If this had been the position of things at the date of the sale, the plaintiff would have no right against the defendant vendee. The vendor, vendee and pre-emptor would all have been sharers in different khotas. It was successfully urged before the lower Appellate Court that inasmuch as the plaintiff no longer fulfilled the condition of being a co-sharer in the same khata as the vendor, a decree could not be made in his favour. It would appear that the defendants never raised this paint relating to the partition proceedings when the case came before the lower Appellate Court the first time. It was mentioned for the first time apparently when the case came before the Munsif on remand.
3. The real question that we have to decide is, whether or not the plaintiff, having a right to a decree in pre-emption at the date of the sale and at the date upon which such decree ought to have been made by the Munsif, loses that right because of a partition which comes into force before the time the decree becomes final on appeal. No direct authority has been cited to us in support of such contention. The respondent cited the case of Tofazzul Husain v. Than Singh 32 A. 567 : 7 A.L.J. 715 6 Ind. Cas. 426. That case was decided entirely upon the principles of Muhammadan Law. Furthermore, the partition had actually come into effect prior to the date of the decree. In the case of Rohan Singh v. Bhau Lal 6 A.L.J. 699 : 3 Ind. Cas. 42 : 31 A. 530, very much the same question arose. Then the vendee became a co-sharer long after the decree of the first two Courts and it was urged on his behalf that because the plaintiff at the date of the final decree could not show that he had a preferential right, the suit should be dismissed. The authorities are referred to at some length and the Court was of opinion that the plaintiff in a suit for pre-emption does not lose his right if he can show that at the date of the institution of the suit and at the date upon which the decree ought to have been made he had a right to pre-emption. At page 702 of the judgment, the following passage occurs: 'We think that it would be contrary to all justice to hold that because the Court,. of first instance and the Court of first appeal made an erroneous decision, the plaintiff should be denied a decree which, it must be admitted, for the purposes of this appeal, he was entitled to'. In the present case on the 6th of April 1910, the date of the first Court's first decision, the plaintiff was, (it must now be admitted), entitled to a decree. The partition did not come into force until the 1st of July 1910. The lower Court refers to the case of Ram Gopal v. Piari Lal 21 A. 441. That case is clearly distinguishable from the present. There the partition proceedings were completed before the Court of first instance came to make its decree.
4. We allow the appeal, set aside the decree of the lower Appellate Court, and restore the decree of the Court of first instance with costs in all Courts. We extend the time for payment of the money to three months from this date.