(1) This is a revision by Moti Lal against an order of the learned Civil Judge, Tonk, dated 10th June, 1955, in proceedings instituted on an application purporting to have been made under Section 144 read with Section 151 of the Code of Civil Procedure, and arises in the following circumstances :
Moti Lal instituted a suit against Ram Pal and Phool Chand on 2nd of April, 1949, in the Court of Munsif, Tonk, for pre-emption of certain house property sold by Iliyas Khan, Mohammad Saddiq Khan, Mst. Ali Begum, Mst. Chhoti, and Mst. Firdos Begum on 2nd of September, 1948. The suit was decreed by the learned Munsif on 14th November, 1951, and a decree was passed that if the plaintiff deposited Rs. 2000/- for being paid to the vendees within one month, the defendants would deliver possession of the property to the plaintiff, whose title to the property would be deemedto have accrued from the date of such deposit; but if no such payment was made within the aforesaid time, the suit would stand dismissed. The money was deposited in Court on 14th of December, and thereby the decree in favour of the plaintiff came into effect. The plaintiff, however, made an application on 2nd January, 1952, that the money deposited by him may not be paid to the defendants, as a certain notice had been affixed on the property by the Custodian of the Evacuee Property, and the proceedings in respect thereof were pending in that office. The defendants on the other hand by their application of 8th February, 1952, wanted that the money deposited by the plaintiff should be paid to them. The plaintiff by another detailed application dated 28th April, 1952, said that the money should not be paid to the defendants till the decision of the proceedings pending in the Court of the Custodian. The Court, however, by order dated 16th of July, 1952, held that the right in the property became transferred to the plaintiff on the date of making the payment in the Court; and the money deposited by the plaintiff had become the property of the defendants vendees, who were entitled to receive the-same from the Court. It accordingly directed that the money deposited into the Court be paid to the defendants. This was done on the next day. The plaintiff made an application on 13th November, 1952, for execution of his decree, and prayed for possession of the property or in the alternative for realisation of Rs. 2000/-, which the vendees had taken away. It was discovered during the course of the proceedings that the Custodian had taken possession of the property as evacuee property, and the Court said that it had no jurisdiction to compel the Custodian to deliver the possession. The application was rejected. On 11th March, 1955, Motilal filed an application purporting to have been made under Section 144 read with Section 151, C. P. C., and urged--1. that the decree, which had been passed in the case had been brought about by fraud of the vendees, as they did not intimate to the Court that the property in dispute was evacuee property.
2. that the decree for pre-emption was passed in enforcement of the right of the pre-emptor as owner of the adjourning property, but such right was in violation of the fundamental rights guaranteed by the Constitution of India, and
3. that the Court had no jurisdiction to grant the decree.
It was contended that for the aforesaid reasons the decree was a nullity, and, therefore, the money deposited by Motilal and taken away by Rampal and Phoolchand should be realised from the latter, and should be paid back to Motilal. The Court rejected this application, and the plaintiff has come in revision.
(2) In this petition the same objections were pressed, and it was further contended that if the Court was unable to deliver possession to the plaintiff pre-emptor, the latter was entitled to receive back the money which he had deposited in Court.
(3) One basic principle of pre-emption is that the pre-emptor takes what the vendee was ready to take, and cannot say that the vendee should be compelled to establish his vendor's title. The preemptor's right is to stand in the shoes of the vendee. The vendee cannot be compelled to make good anydefect that may have existed in the vendor's right to sell. Assuming, therefore, that the vendors in the present case had defect in their title to transfer, the pre-emptor by depositing the money on 14th of December, 1951, got for himself whatever rights the vendees were possessed of in the property, and the vendees could not be held responsible if the property was taken away by the Custodian of Evacuee Property in his possession upon a finding that it was an evacuee property, and the vendors had no right to transfer the same. In the present case there is a further obstacle in the way of the plaintiff that the proceedings by the Custodian seem to have been started after the decree of the Court of the Munsif, for the plaintiff admitted in paragraph 2 of his application of 28th April, 1952, that the Custodian had affixed his notice on the property after the decision in the suit, and that the plaintiff had put up his objections before the Custodian, which were then pending. This admission shows that the proceedings by the Custodian came to be taken after the decision in the suit and after the title in that property came to be transferred to the plaintiff on 14th December, 1951. As stated earlier, the vendees were not under any obligation to guarantee the light of the vendors to transfer the property to the vendees, and the pre-emptor acquired only such rights as the vendors were able to transfer to the vendees. The loss of the property, therefore, had to be suffered by the plaintiff himself, if it came about by any action of the Custodian in spite of the plaintiff's objection which he said he had preferred before the Custodian.
(4) There was no fraud committed by the vendees, as they were-under no obligation to inform the Court even if the proceedings by the Custodian had started before the institution of the suit or while the suit was pending.
(5) The invalidity of the right could not be urged by the pre-emptor who was out to enforce such right, and did obtain a decree as also transfer of the title to the property from the vendee by deposit of the pre-emption money. It may however, be stated that the right was claimed in the plaint on more than one ground, and the decree had become final.
(6) The plea as to the jurisdiction of the Munsif to pass the decree remains unsubstantiated.
(7) There is no force in this revision, and it is accordingly dismissed. I will not allow costs to the respondents, as counsel for the respondents was unable to give any assistance in disposing o this revision.