P.N. Mookherjee, J.
1. This Second Appeal arises out of a suit for recovery of a certain amount of money, under the following circumstances:
2. The Respondent's predecessor Puma Chandra Choudhury, claiming to be a co-sharer of the properties, mentioned in the schedule to the present plaint, applied for pre-empting the sale made by his brother Sarat Chandra Chou-dhury in favour o'f the present Appellant. That Bale was made on 5th Pous 1351 B. S., correspond--ing to 20-12-1944, and the pre-emption application was filed In or about June 1945.
At that time, the title of Purna and his two brothers, Panchanan and Sarat, had been declared by the Trial Court in T. S. 1 of 1941 of the Court of the Subordinate Judge of Berhampore but an appeal (P. A. No. 126 of 1943) was pending in this Court against the said decision, Purna'spre-emption application was entirely allowed on 25-1-1947 and the present appellant withdrew the pre-emption money in or about April, 1943. In the meantime, however, the High Court Appeal (P. A. No. 126 of 1943) was allowed by thisCourt and Puma's title was negatived in all thepresent disputed properties, in March 1949, thepresent suit was instituted by Purna for interalia recovery of the above pre-emption money,withdrawn by the present appellant.
3. In the plaint there was also a claim for interest.
4. The defence inter alia was that the plain- tiff Purna was not entitled to any decree in law even upon the allegations, made by him in his plaint, which meant, in substance, that the suit was not maintainable in law.
5. The Courts below have concurrently overruled the defence and have decreed the plain-tiff's claim in part, that is, so far as the principal money is concerned, and they have rejected his claim for interest. The defendant has come up in Second Appeal.
6. In arguing the appeal on behalf of the Defendant Appellant, Mr. Roy placed strong reliance upon the two decisions of this Court, reported in -- 'Nur Mohammad v. Seraj' : AIR1953Cal216 (A) & 'Priyanath Biswas v. Natobur, Bis-was', 58 Cal WN 975 (B), and he contended that a suit for refund of the pre-emption money waa not maintainable in law. In the cases cited, the claim for refund was made on the ground that the 'transferee' had not acquired, because his vendor did not have, the professed right, title and Interest in the pre-empted properties and that claim was rejected.
Those decisions, however, have no application, to the present case, so far at least as the claim for refund is based on the ground that the intend. ing pre-emptor was eventually found by a competent (appellate) Court to have no interest in the properties sought to be pre-empted & had thus ho locus standi to maintain the pre-emption application. They may be relevant on the other part of the plaintiff's case that, so far the disputed properties were concerned, the Vendor Sarat's title was negatived at least with regard to two of them, but the failure of this part of the plaintiffa case would not affect the final result, if the plaintiff's claim can succeed on the other ground.
7. In view of the decision of this Court inthe Appeal (F. A. No. 126 of 1943, filed before it,there can be question that Purna was not a co-sharer and could not, therefore, in law apply forpre-emption and the pre-emption proceedings athis instance had no legal foundation.
The utmost that can be said is that, so longas the pre-emption order (which also includea payment of the pre-emption money to the 'trans- feree') stands, no question of refund of the said pre-emption money can arise. This is not entirelywithout substance but the Court of Appeal belowhas treated the present suit as really an application for setting aside that order.
In the circumstances of this case and having regard to the fact that the present suit was insti- tuted in the same court which decided the pre-emption case, we are not inclined to take a differ-; ent view of the matter. There Is nothing to show that any third party's interest has intervened, the Courts below have concurrently found that the de-fendant appellant withdrew the pre-emption money with full knowledge of the High Court judgment and that the equities are against the defendant. In the above state of things, we have no hesitation in affirming the decisions of the two courts below.
8. We, accordingly, dismiss this appeal though, in the circumstances, we would direct the parties to bear their own costs throughout.
9. I agree.