Vyom Prakash Gupta, J.
1. Jagan Nath sold land measuring 21 Kanals 12 Marias situate in village Kungrat to Sadhu Ram and others by a registered sale deed Ex. D-2 dated 19-11-1959 for a consideration of Rs. 1,000/-.
2. Kewal Singh plaintiff claiming himself to be a son of the vendor, filed a pre-emption suit (No. 514 of 1960) Claiming the possession of the disputed property, and another pre-emption suit (No. 500 of 60) was filed by Munshi Ram son of Shri Udham Singh claiming himself to be a brother of the vendor claiming possession of the disputed property.
3. Both these suits were consolidated vide order dated 3-1-1961 of Sub Judge, Una, In the suit of Kawal Singh the other rival pre-emptor Munshi Ram had been impleaded as defendant No. 7.
4. Both these suits were contested and on the pleadings of the parties the following issues were framed :--
1. Whether the plaintiff and the rival pre-emptor have a preferential right of pre-emption against vendees defendants and if so what are their rights inter se? OP plaintiff and rival pre-emptor.
2. Whether the sale price was actually paid or fixed in good faith? OPD.
3. If issue No. 2 is not proved, what is the market value of the land in suit? OPP.
The Sub Judge first Class, Una, vide his judgment and decree dated 14th Oct., 1961, dismissed the suit of Kewal Singh, but decreed the suit of Munshi Ram, rival pre-emptor on payment ofRs. 1,000/- as pre-emption money. The pre-emption money was to be paid on or before 15-11-1961 and in case of default in payment, this suit was also to be considered as having been dismissed.
5. Kewal Singh filed an appeal with the Senior Sub Judge Hoshiarpur who was having enhanced appellate powers and this court dismissed the appeal of Kewal Singh vide judgment and decree dated 5th May, 1962. It was also held in first appeal that the decree passed in favour of Munshi Ram could not be set aside.
6. Feeling aggrieved, Kewal Singh the plaintiff as well as the vendees Sadhu Ram and others filed the present appeal in the High Court of State of Punjab at Chandigarh on 11-8-1962 and it was claimed in appeal that the suit of Munshi Ram should also have been dismissed against the vendees. It is also mentioned that the suit of Kewal Singh should have been decreed.
7. As Himachal Pradesh High Court came into existence, therefore, this appeal was finally transferred to this court for disposal.
8. I have heard Mrs. Pritma Malhotra, counsel for the appellants and Mr. Kapil Dev Sud, learned counsel for the respendents.
9. At the very out set it was brought to my notice that appellant No, 10, Mela Ram vendee, (appellant No, 11) Santa Ram vendee and appellant No. 12, Bantu Ram vendee have died in December 1967, August 1970 and Nov. 1966 respectively. This fact was admitted by the learned counsel appearing for the parties and it is also clear from the order dated 13th July, 1972 that appellants Nos. 10 and 11 have died, It is also admitted that the legal representatives of these appellants have not been brought on record.
10. In view of the above admitted facts the learned counsel for the respondents raised a preliminary objection that the present appeal should be dismissed as having abated. It was contended by the learned counsel for the respondents that the sale in dispute is one and indivisible and that a decree for possession for (and?) pre-emption has been passed in favour of Munshi Ram respondent No. 1 against the appellants vendees. The learned counsel contended that in view of the fact that some of the vendees have died, the whole appeal should be dismissed as having abated.
The learned counsel referred to AIR 1926 All 152, Shabbar Hussain v. Abbaa Ali, AIR 1934 Lah 429, Mahomed Shafi v. Allah Din, AIR 1945 Lah 184 (FB), Ghulam Qadir v. Ditta, in support of his contentions.
11. The learned counsel appearing on behalf of the appellants contended that in the sale deed Ex. D-2 the share of the vendees have been given separately and, therefore, the sale is divisible and appeal cannot be dismissed as having abated in toto, AIR 1961 J & K 36, Mir Mohd. v. Mehta Bhagwan Dass was relied upon in support of the contentions.
12. I have considered the contentions of the learned counsel for the parties and have gone through the records of the case.
13. To decide the controversy, it is worthwhile to refer to the contents of the sale deed Ex. D-2. In this sale-deed, there is only one vendor Jagan Nath. He was owner of 21 kanals 12 marlas of land situated in Khasra Nos. 608 and 609 and has sold this land for a consolidated amount of Rupees 1000/- in favour of Sadhu Ram, Jwala Ram sons of Nikka Ram, 93/108 share, Khalu Ram son of Nika Ram 5/108 share, Mela Ram son of Nika Ram 5/108 share, Santa son of Nika Ram 5/216 share, Bantu Ram son of Haria Ram 5/216 share, The vendor has in the last lines mentioned that the vendees, Khalu Ram, Mela Ram, Santa Bam and Bantu Ram will be taking their share of the land out of Khasra number 608 (measuring 6 kanals) and the whole of the remaining land will be taken by Sadhu Ram and Jawala Ram vendees. Regarding the sale consideration of Rs. 1000/-, it is mentioned that Rs. 750/- were received from the vendees before the Sub Registrar and Rs. 50/- have been taken for expenses of deed, registration and other household expenses and for the remaining sum of Rs. 200/-, a pronote has been executed by Sadhu Ram vendee.
14. Thus the contents of the sale a deed, clearly prove that the vendor has sold the land to all the vendees jointly. The vendees have by a mutual arrangement decided to purchase the land in specified shares and they have further arranged to take the specific portions of the land from different khasra numbers.
This arrangement inter se between the vendees has nothing to do with the sale which had been made by the vendor who was only concerned with the sale consideration of Rs. 1000/- to be received by him for all the vendees jointly. The clear intention as indicated from the sale deed is that the vendor had agreed to sell the whole of his land measuring 21 kanals 12 marlas to the vendees by a single sale deed for a consideration of Rs. 1000/- and that he had no intention to sell different portions of land to different vendees for separate and distinct sale considerations. In short, the sale deed is a single sale deed and it cannot be said that it is a composite sale deed comprising of different sales by one vendor in favour of everal vendees. It was not within the power of Kewal Singh pre-emptor plaintiff to have split up the sale deed Ex. D-2 and to have claimed pre-emption with respect to a portion of the land mentioned in the sale deed. He could not bring a suit for a portion of the land after eliminating the share of the deceased-vendees. If he had done so then the suit was clearly hit by the principles of partial pre-emption and the whole of the suit of the plaintiff-pre-emptor, Kewal Singh, would have been dismissed because of the fact that if he had any right to pre-empt the sale, then such a right of pre-emption was available to him for the whole of the land mentioned in the sale deed. It is an established principle of law that the pre-emption right is a right of substitution and the pre-emptor has to claim the whole of the property to which he has a superior right of pre-emption and he cannot leave any portion of the property at his own choice. Moreover, the cause of action in this suit is one and indivisible. There is no dispute that the decree against the defendants-vendees has become final and the present appeal as against the deceased-vendees has abated. If the appeal with respect to the remaining vendees-appellants (who are alive) is allowed to proceed then it may result in two inconsistent conflicting and contradictory decrees. With the continuance of appeal the possibility is not excluded that with respect to one sale deed Ex. D-2, Munshi Ram pre-emptor who has obtained a successful decree for possession against the deceased defendants vendees may be non-suited qua the living vendees-appellants. In view of this position, this appeal cannot be allowed to proceed and has to be dismissed as a whole. In taking this view, I am supported by Full Bench judgment of Lahore High Court, AIR 1945 Lah 184, Gulam Quadir v. Ditta as well as AIR 1934 Lah 429, Mohammad Shafi v. Allah pin and AIR 1926 All 152, Shabbar Hussain v. Abbas Ali.
15. It may be mentioned that the authority, AIR 1961 J & K 36 Mir Mohd. v. Mehta Bhagwan Dass, referred to by the learned counsel for the appellant has no applicability to the facts and circumstances of the present case. In AIR 1961 J & K. 36, (supra) there were in fact two different plots of land which were owned by two persons and both these owners had sold their different plots of lands to two different vendees. The vendor and vendee of one plot had no connection with respect to the sale of the other plot which was sold by a different vendor to a different vendee. In fact, in this reported judgment there Was a composite sale deed, comprising two different sales and in these circumstances the Hon'ble Judges of J. & K. High Court held that the intention of the parties at the time of sale was to effect two distinct and separate sales and they executed a single sale deed. In view of the above discussion the present appeal has abated in toto, and cannot proceed. Hence this appeal is dismissed as having abated. The parties are left to bear their own costs.