JUDGMENT
1. The following pedigree will explain the position of the parties:
JAGANNATH | _____________________________________________ | | | | Ishwar Dat. Shyama Sada Nada Rama Nand Nand | | | | Brij Mohan | Mahesh Ganesh Dat. Dat.
2. The principal defendant in the two suits out of which these appeals have arisen is Ishwar Dat, whose name appears in the pedigree above. Two sale-deeds were executed in his favour, one on the 27th April 1923 by Brijmohan and the second on the 10th of August 1923 by Ganesh Dat.
3. It appears that previous to certain partition proceedings, which are about to be mentioned, all these parties were co-sharers in a patti of Mouza Latwapur called patti Jagannath.
4. A partition was begun and by the 15th December 1922 the partition was confirmed by the Collector. Under Section 131 of the Land Revenue Act that partition could not take effect till the 1st July 1923.
5. Under the arrangement which was made by these partition proceedings, Patti Jagannath was divided, and one of the new pattis erected was patti baqimanda. In this patti baqimanda, the pre-emptor in both suits, namely, Mahesh Dat Upadhiya, is a co-sharer with each of the vendors. It is admitted that Ishwar Dat, the purchaser, is not a co-sharer in patti baqimanda from the date on which the partition takes effect.
6. The Court of first instance dismissed both these suits for pre-emption being of opinion that the partition could not take effect in law up till the 1st of July 1923, regard being had to the provisions of Section 131 of the Land Revenue Act. The Munsif held that although the partition proceeding's had been brought to an end by the Collector's order of confirmation passed on the 15th of December, 1922, yet for the purposes of pre-emption, the previous relations between the parties were still in existence and did not determine until the partition became effective.
7. We have no doubt whatever that the view taken by the Munsif is correct and we disagree with the judgment of the Court below in the contrary sense.
8. We have then to consider what was the situation on the 27th of April 1923 when the first of these two sales was made by Brijmohan in favour of Ishwar Dat. Having regard to the state of things which existed before the partition became effective, the plaintiff-pre-emptor had no better right to take this property than the vendee had, because at that time both parties were Co-sharers in the Patti Jagannath.
9. Then, as rightly held by the First Court, if we come to the conclusion that the suit of the plaintiff must fail with regard to the first of these two sales, it must necessarily fail with regard to the second, because. by virtue of the first sale the vendee Ishwar Dat by the time of the second sale, i.e., the 10th August, 1923, had become a co-sharer in the new patti-patti baqimanda.
10. As regards both the sales then the position is this that both the pre-emptor and the vendee Ishwar Dat are in the same category of pre-emptors. None of the Courts, below seems to have appreciated the fact that both these cases are governed by the Agra Pre-emption Act (XI of 1922), both the sales having taken place subsequent to the commencement of the Act, the date of which was the 17th February, 1923.
11. Both the pre-emptor and the vendee being in the same class of pre-emptors under the scheme provided by Section 12, in order to as certain whether there is any preference between them we have to refer to the provisions of Sub-section. (3) of Section 12. There a preference is given to the person who is the nearest heir of the vendor. If we, look at the pedigree, which is set out at the head of this judgment, the fights of the eases are with the vendee, Ishwar Dat, for he is a nearer heir of both the vendors than is Mahesh Dat the pre-emptor.
12. We hold, therefore, that in neither case is the plaintiff entitled to pre-empt and we, therefore, allow both these appeals, set aside the decrees of the Courts below, and direct that the plaintiffs' claim be dismissed in all Courts with costs, including in this Court fees on the higher scale.