JUDGMENT
1. These are two second appeals, which have been disposed of in a single judgment of the lower appellate Court. We will first deal with second appeal No. 1727 brought by Saheb Dayal Singh against Mahabir Singh and Ram Dhari Singh. This was a suit for specific performance brought by Saheb Dayal Singh, alleging that Abdul Bari and three other cosharers executed a written agreement dated 23rd December 1922, undertaking to sell to him their 0-6-10 share in mahal Mohammad Taqi of mauza Ahmadpur. It is found as a fact by the lower appellate Court that Abdul Bari was not a party to that agreement to sell. On second appeal an argument has been addressed to us against this finding of fact to the effect that the lower appellate Court was mistaken in its construction of the sale-deed dated 4th September 1923, which, it is alleged, would conclusively prove that Abdul Bari also agreed to the agreement to sell on 23rd December 1922. We do not consider that the passage in question necessarily bears this interpretation, and even if it did, it is only one of the facts before the lower appellate Court, and the lower appellate Court was entitled to come to a finding on all the facts before it. Accordingly we consider that we are bound by the finding of fact that the agreement to sell was made only by the three other cosharers. It follows, therefore, that the subsequent sale-deed by Abdul Bari of his share to the respondents, Mahabir Singh and Ram Dhari Singh on 4th September 1923 is a valid transfer of the share of Abdul Bari. Accordingly from that date Mahabir Singh and Ram Dhari Singh have attained the status of cosharers in this mahal, and they would have a pre-emptive right against Saheb Dayal Singh if a sale-deed were now granted in favour of Saheb Dayal Singh as a matter of specific relief. Saheb Dayal Singh is admittedly not a cosharer in mahal Mohammad Taqi but only a cosharer in the other mahal of this village. Accordingly we consider that the lower appellate Court was correct, and we dismiss the appeal of Saheb Dayal Singh with costs.
2. Appeal No. 1710 is brought by Mahabir Singh and Ram Dahri Singh against a decree of the lower appellate Court granting specific performance to the plaintiff, Mt. Phulraji, of an agreement to sell made on 10th January 1923 by Mt. Sadiqa Bibi also of a share in mahal Mohammad Taqi. It is admitted that subsequent to this agreement on 4th September 1923 Mt. Sadiqa Bibi transferred her share by a sale-deed to the appellants Mahabir Singh and Ram Dhari Singh. It is claimed for the appellants, Mahabir Singh and Ram Dhari Singh, that by virtue of the sale-deed from Abdul Bari dated 4th September 1923, they have attained the status of cosharers in mahal Mohammad Taqi, and accordingly that any sale-deed now granted to Mt. Phulraji would be liable to defeat in a suit for pre-emption brought by Mahabir Singh and Ram Dhari Singh. We have heard various possible grounds of defence to such a suit put forward by the learned counsel on behalf of. Mt. Phulraji, but we consider that no possible, ground of defence to such a suit has been, shown. It was further argued that the discretion to grant or refuse specific performance should not be exercised on second appeal, but we find that the Calcutta High Court in the second appeal of Habibur Rahman v. Ali Azhar A.I.R. 1926 Cal. 1237, held that it was inequitable for the lower appellate Court to decree specific performance of an agreement for sale of land against a subsequent purchaser where the latter was entitled to a right of pre-emption against a person seeking to enforce the agreement for sale; and the decree was set aside on second appeal. The lower appellate Court considered it probable that it might be proved in a pre-emption suit that Mt. Phulraji was only a benamidar for her relative Saheb Dayal Singh, and that Saheb Dayal Singh being a cosharer, it would be improper to give a final adjudication on the rights of parties. We must point out that Saheb Dayal Singh is not a cosharer in mahal Mohammad Taqi but in the other mahal, and accordingly Mahabir Singh and Ram Dhari Singh, who are cosharers in mahal Mohammad Taqi, by virtue of the sale-deed of 4th September 1923, have a pre-emptive right even though Saheb Dayal Singh were the actual vendee. As this was the only ground on which the lower appellate Court considered that the pre-emption suit might be resisted and that ground, in our opinion, is without any force, accordingly we consider that the pre-emption suit must undoubtedly prevail if brought. We allow the appeal of Mahabir Singh and Ram Dhari Singh and reverse the decree of the lower appellate Court which granted a decree for specific performance to Mt. Phulraji. Under the circumstances of the case we dismiss her suit for specific performance, but because the contract to sell with Mt. Phulraji was undoubtedly prior to the sale in favour of the appellants, we consider that this is a case in which the parties should pay their own costs throughout.