Full Judgment
1. After hearing the arguments in this case we have come to the conclusion that the appeal must be allowed. It is quite true that the judgment of the lower appellate Court is based upon a ruling of this Court reported as Her Keshi v. Mewa Ram AIR 1928. All 294. There can be no doubt that on the facts that case is not distinguishable from the case now before us, but nevertheless for the reasons we are about to give, we think it should not be followed. What happened in the present case was this: one Charan Singh sold some property to Bijai Singh and Chandrahas. This Bijai Singh was a co-sharer in the property, while Chandrahas was a stranger. This sale was made on the 15th December 1922. The four plaintiffs-appellants here before us filed a suit for pre-emption on the 1st December 1923. On the 14th December 1923, a rival set of pre-emptors Gulzar Singh and others, filed their suit for pre-emption and on this very day, that is on the 14th December 1923, the vendees Bijai Singh and Chandrahas sold the property to one Pokhar Singh. It is conceded before us that Pokhar Singh has as good a right of pre-emption as any of the parties who brought the rival pre-emption suits. The result of the litigations in the Court of first instance was that it was found that the rival pre-emptors and Pokhar Singh had an equal status to pre-empt and a decree was framed dividing the property: four-tenths to one party, five tenths to another party and one tenth to Pokhar Singh. On appeal the decree of the Court of first instance has been reversed and the suits of the plaintiffs pre-emptors have both been dismissed. The result of this, therefore, must be to leave all the property with Pokhar Singh.
2. In the case of Her Keshi v. Mewa Ram AIR 1928. All 294, upon which the lower appellate. Court relies, no question was raised regarding the application of the doctrine of lis pendens. We think, however that doctrine must be applied to pre-emption suits as well as to any other suits. We have laid this down in a ruling in Bhikimal v. Debi Sahai : AIR1926 All179 . Now it is plain that in the present case the transfer which was made to Pokhar Singh was pendente lite and the plaintffs-appellants before us can say that the doctrine of lis pendens ought to be applied in the suit which they instituted, and that any rights that they had against Pokhar Singh at the institution of the suit should not be interfered with by anything done by the original vendees of the property pending the trial of the suit. It has been said that plaintiffs and Pokhar Singh have equal status in the matter of claiming pre-emption, and it is clear that if Pokhar Singh, instead of taking a transfer of the property had brought a rival suit for pre-emption, he would have been given a share of the property in proportion to the extent of his claim along with the other plaintiffs-pre-emptors.
3. It appears to us, therefore, that on the application of this principle the decree of the Court of first instance was correct in the circumstances as they then existed. We have, however, to take notice of the fact that one set of pre-emptors has dropped out and hag allowed the decree of the lower appellate Court to become final. We have, therefore, now before us only one set of four pre-emptors and the purchaser Pokhar Singh; and applying the principles laid down above, we think that the proper decree to pass is that the plaintiffs-appellants be given four-fifths of the pre-empted property on payment of Rs. 320. Pokhar Singh, who has already purchased, may retain the remaining one-fifth of the property. We allow the plaintiffs two months to deposit the sum mentioned above in the Court of first instance to the credit of Pokhar Singh. If the deposit is made within the time limited, the plaintiff's claim will be decreed to that extent and they will be entitled to four-fifths of their costs in both the Courts below. If the deposit is not so made then their suit will stand dismissed with costs to Pokhar Singh in both the Courts below. As regards the costs of this Court, we leave the parties to bear their own costs.