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 co sharers executed a written agreement dated 23rd December, 1922, undertaking to sell to him their 0-6-10 share in Mahal Mohammad Taqi of Mouza 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 wag mistaken in its construction of the sale-deed dated 4th of September, 1923, which, it is alleged, would conclusively prove that Abdul Bari also agreed to the agreement to seil on 23rd of 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 co-sharers. 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 of 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 co-sharers in this mahal, and they would have a pre emptive bright 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 co-sharer in Mahal Mohammad Taqi but only a co-sharer 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 Dhari Singh against a decree of the lower Appellate Court granting specific performance to the plaintiff, Musammat Phulraji, of an agreement to sell made on 10th January, 1923, by Musammat Sadiqa Bibi also of a share in Mahal Mohammad Taqi. It is admitted that subsequent to this agreement on 4th of September, 1923, Musammat 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 the 4th of September, 1923, they have attained the status of co-sharers in Mahal Moham mad Taqi, and accordingly that any sale-deed now granted to Musammat Phulraji would be liable to defeat in a suit for preemption brought by Mahabir Singh and Ram Dhari Singh. We Lave heard various possible grounds of defence to such a suit put forward by the learned Counsel on behalf of Musammat Phularji, 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 98 Ind. Cas. 193 : 44 C.L.J. 162 : 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 Musammat Phulraji was only a benamidar for her relative Saheb Dayal Singh and that Saheb Dayal Singh being a co-sharer, 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 co-sharer in Mahal Mohammad Taqi but in the other mahal, and accordingly Mahabir Singh and Ram Dhari Singh, who are co-sharers in Mahal Mohammad Taqi, by virtue of the sale-deed of the 4th of 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 preemption 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 Musammat Phulraji. Under the circumstances of the case we dismiss her suit for specific performance, but because the contract to sell with Musammat 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.