Jiwan vs Matrwa And Anr. on 18 February, 1927

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Allahabad High Court
Jiwan vs Matrwa And Anr. on 18 February, 1927
Equivalent citations: AIR 1927 All 735, 101 Ind Cas 538


1. This is a plaintiff’s appeal arising out of a suit for pre-emption. After the institution of the suit the vendees acquired shares in the village under two deeds of exchange and pleaded that they had thereby destroyed the plaintiff’s right of preference. The plaintiff replied that those deeds of exchange were really fictitious. He instituted separate suits to pre-empt those deeds of exchange treating them as deeds of sale. It has been conceded before us that it has been finally held in these other suits that the deeds of exchange were not deeds of sale and were genuine. The lower appellate Court has accordingly held that the defendants-vendees, by virtue of these deeds of exchange, have become co-sharers on the same footing with the plaintiff and that under Section 20, Agra Pre-emption Act, the plaintiff has no preference. In our opinion the conclusion of the learned Subordinate Judge on this point is correct. Even apart from Section 20, it has been held by this Court in several cases that, when the vendee, acquires his share before the passing of the decree-so as to become a co-sharer on the same footing as the plaintiff, the plaintiff loses his right under Section 19 of the Act: vide Sultan v. Masitu A.I.R. 1926 All. 749. We may, however, add that the plaintiff was perfectly justified in bringing the suit as the defendants were strangers at that time and it was subsequent to the institution of the suit that the defendants acquired shares in the village.

2. We dismiss the plaintiff’s suit but direct that the plaintiff’s costs in the trial Court should be borne by the defendants-vendees who will in that Court bear their own costs as well. In the lower appellate Court and in this Court the vendees will be entitled to their costs as against the plaintiff. Costs in this Court will include fees on the higher scale.

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