Sankar Saran, J. - (1.) This is a plaintiffs appeal in a suit for pre-emption.
(2.) On 22-7-1945, a sale deed was executed by one Mahabir Prasad in favour of Sadho Ram and Sita Ram. Next day a suit for pre emption (Suit No. 345 of 1915 was filed by the present appellant and subsequently on 5-9-1945, another Suit No. 393 of 1945 was filed by Bharat Singh and others for pre empting the same property. During the pendency of the suit, on 18-10-1945, the plaintiffs in Suit No. 393 of 1945, Bharat Singh and others, became co-sharers by a deed of exchange in the same Khewat. It may be mentioned that the plaintiff Malkhan Singh was a co-sharer in the mahal.
(3.) This case was heard by a learned single Judge of this Court who considered it necessary to refer it to a Bench with the following observations : "Learned counsel for the plaintiff-appellant argues, on the analogy of the proviso to Section 19, that just as a vendee could not defeat a suit merely acquiring a share after the institution of the same, so could a rival pre-emptor also not defeat a pre-emption claim by a co-sharer merely by virtue of acquiring a share after the institution of the suit. To my mind, there seems to be no reason why a different rule should be followed in the case of a rival pre-emptor relying on an acquisition of interest after the institution of the suit than the rule to be enforced where it is the stranger vendee who acquires such an interest after the suit." The learned Judge referred this case to a Bench because of the absence of any ruling and also because of the fact that he was taking a view different from both the Courts below in this particular case.;