1. On the 7th January 1930 the second and third defendants sold to the first defendant, who is the appellant here, certain property situated in. two mahals Gobind Ram and Baqi Manda. The sale of these items of property wag made by one deed.
2. Five plaintiffs brought a suit to preempt this sale. Of these, plaintiffs Nos. 1, 2 and 3 had no share in mahal Baqi Manda. Plaintiff Nos. 4 and 5 had shares in both mahals. At the time of the purchase the vendee had no share in either mahal and this was the state of affairs at the time the suit was brought.'
3. During the pendency of the suit the, vendee got a transfer made in his favour of certain property situated, in both the mahals. This transfer purported to be by way of gift. The Court of first instance, however, held that the transfer was not in reality a gift but was in fact a sale and this view has been affirmed in appeal by the lower Appellate Court.
4. The result of the suit in the Court of first instance was that the plaintiffs' claim was dismissed entirely with respect to the property situated in mahal Baqi Manda. The Munsif found that the plaintiffs Nos. 4 and 5 had, by associating with them in their claim, strangers to the property, in mahal Baqi Manda, disqualified themselves from obtaining any decree or preemption in respect of this property. We have already adverted to the fact that the first second and third plaintiffs had no share in mahal Baqi Manda.
5. The Munsif gave a decree to all five plaintiffs for pre-emption of the property situated in mahal Gobind Rain.
6. This decree of the Court of the first instance has been affirmed in appeal by the learned District Judge.
7. It is complained in second appeal that the learned Judge did not decide all the points which were raised before him. In fact the only question which the learned Judge has decided is that the transfer which was made in favour of the vendee during the pendency of this suit was a transfer by way of sale and not by way of gift.
8. The first plea of which we take notice is contained in paragraph ho. 2 of the memorandum of appeal. The learned Counsel has contended that the suit ought to have been dismissed on the ground that no suit for partial pre-emption, is maintainable.
9. We are of opinion that this plea ought to succeed so far as the fourth and fifth plaintiffs are concerned.
10. By joining in the suit persons who were strangers to the property situated in mahal Baqi Manda, these, plaintiffs disqualified themselves from suing for preemption of the property in that mahal, and as under the law they must pre-empt the whole sale and as they have disqualified themselves from doing so, in our opinion, their suit must fail entirely.
11. This consideration however does not apply in the case of the plaintiffs Nos. 1, 2 and 3. They could only claim pre-emption of the property situated in mahal Gobind Ram and this they have done.
12. It is next pleaded in paragraph 3 of the memorandum of appeal that there is no sufficient proof of custom. That question has not really been argued before us and indeed it appears to us that no argument is possible in view of the provisions of the wzjib-ul-arz upon which the First Court relied. We are satisfied that a custom of pre-emption does exist.
13. As regards the argument that the whole suit should be dismissed we have already expressed our opinion that the claim of the first second and third plaintiffs cannot be dismissed on the facts as they stand, further it is to be observed that the appellant, the vendee, cannot succeed on the law as laid down by this Court. He has been found by both Courts to have taken a transfer by way of sale during the pendency of the suit. He has not acquired an indefeasible title to the property by this transfer and in fact a suit for pre-emption in respect of this transfer was filed before the Munsif gave his decision. At the time of the First Court's decree the appellant had no complete title and was, therefore, not in a position to claim the status of a co-sharer. He was in short only a stranger and under the custom as set out in the wajib-ul-arz the plaintiffs have a right of pre-emption as against him in respect of the property situated in mahal Gobind Ram.
14. This view of the law has been taken in the case reported as Nabiban Bibi v. Kauleshar Rai 4 A.L.J. 351 : A.W.N. (1907) 110 affirming the decision of Richards. J., which is reported as Kauleshar Rai v. Nabiban Bibi 3 A.L.J. 486 : A.W.N. (1906) 164 : 28 A. 642.
15. This ruling has been followed in other decisions of this Court and we need only refer to a decision of the present Bench, dated 20th April 1923 in Radhika Raman Bihariji Maharaj v. Bohra Shiam Sunday Lal 74 Ind. Cas. 382 : 21 A.L.J. 518 : (1923) A.I.R. (A.) 526 : 45 A. 561.
16. The result of all this is that we modify the decree of the Court below by directing that the claim of the plaintiffs Nos. 4 and 5 be dismissed in respect of mahal Gobind Ram as against the defendant-appellant, with proportionate costs in all Courts. The decree in favour of the plaintiffs Nos. 1, 2 and 3 with respect to piahal Gobind Ram will remain and to this extent the appeal fails and is dismissed with costs to the plaintiffs-respondents Nos. I, 2 and 3.
17. We may, mention here that the order of the First Court dismissing the suit as regards mahal Boqi Manda has become final and no appeal was filed against that order in the Court below.