JUDGMENT
1. This was a suit by the appellant for possession of a share in patti Mumtazuddin in Mahal Fakir Bux Mauzah Mani Umarpur. This share was put up for sale on September 20th, 1910, in execution of a decree of a Civil Court. The plaintiff's bid was Rs. 530. The respondents offered the same amount and the share was knocked down to them under Order XXI, Rule 88, on their showing that they had purchased two other shares in the same patti on August 11th, 1910. The appellant was at the time the holder of a share in the other patti in the mahal, namely, patti Fakir Bux but held no share in patti Mumtazuddin. His case is that he was at the time of the sale a co-sharer with the meaning of Order XXI, Rule 88, and that the respondents must be regarded as strangers inasmuch as their title to the shares purchased by them on August 11th, 1910, was at the time defeasible and they have since been compelled to surrender those shares to the appellant under decrees for preemption obtained by him on July 8th, 1911 and January 31st, 1912.
2. It appears that Mahal Fakir Bux was recently the subject of an imperfect partition at which the two pattis were constituted. It appears also that the whole of the land comprising the original mahal lies either in one patti or the other, there being no shamilat patti. In these circumstances, it is a nice question whether the 'undivided property', for the purposes of Order XXI, Rule 88, is the whole mahal or only the patti Mumtazuddin. But we need not decide this question for in accordance with the decisions of Knox A.C.J. and Tudball, J. in Kamta Prasad v. Mohan Bhagat 32 A. 45; 6 A.L.J. 966; 3 Ind. Cas. 782 and of Stanley, C.J., and Burkitt, J., in Nabiban Bibi v. Kauleshar Rai 4 A.L.J. 351; A.W.N. (1907) 110 on appeal from the decision of Richards, J., in Kauleshar Rai v. Nabiban Bibi. 3 A.L.J. 426; A.W.N. (1906) 164; 28 A. 642 we feel bound to hold that the defeasible title to the shares in patti Mumtazuddin acquired by the respondents in August 1910 did not give them the right to pre-empt the share now in question as co-sharers.
3. We allow this appeal, set aside the decrees of the Courts below and decree the appellant's claim to possession of the share in question with costs in all three Courts, fees on the higher scale in this Court.