Rai, J.This is an appeal by the pltfs. against the judgment & the decree of the Fourth Additional Subordinate Judge, Gaya, reversing those of the Second Additional Munsif of the same place.

2. The above appeal arises out of a suit for pre-emption. According to the case of the pltfs., deft. 2, Shyam Dutt Missir, executed a sale deed on 19-7-1945, in respect of one anna 12 dams share in khewat No. 4, tauzi No. 753 of village Pandit Bigha in favour of deft. 1. The sale deed was regd. on 23-7-1945. On hearing of the sale the pltfs. performed the necessary ceremonies entitling them to claim pre-emption. On these allegations they claimed to be put in possession of the vended share on payment of Rs. 1000 only.

3. The suit was contested by the vendee, deft. 1, who pleaded that the pltfs. had not performed any ceremony entitling them to claim pre-emption.

4. The trial Ct. decreed the suit. Deft. 1, the vendee, filed an appeal before the lower appellate Ct. In the appeal, however, she impleaded only the pltfs. as resps..She did not implead deft. 2 as a party to the appeal. At the time of the hearing of the appeal an objection was taken by the pltfs. that as deft. 1 had not impleaded deft. 2 as a party to the appeal, the whole appeal had become infructuous & it was bound to fail on that ground. The lower appellate Ct., however, came to the conclusion that the pltfs. had failed to prove that they had performed the necessary ceremonies entitling them to claim pre-emption. On the point of non-joinder of deft. 2 to the appeal, it held that it was not fatal. In this view of the matter, the appeal was allowed & the suit was dismissed.

5. In this Ct.. the learned counsel for the pltfs applts. has argued that there is no clear finding in the judgment of the lower appellate Ct. that the necessary ceremonies had not been performed. According to him, the learned Subordinate Judge had only held that the ceremonies were not performed at the proper time. In my opinion, the lower appellate Ct. has held that the pltfs case of performing of the ceremonies is not believable. It has further held that even if the ceremonies be taken to have been performed, they were not done in accordance with law. But the alternative finding dogs not take away the force of the finding that no ceremonies were performed. In my opinion, the contention of Mr. Misra is untenable. There is no justification for us to interfere with the finding of facts of the lower appellate Ct.

6. Mr. Misra, however, laid great emphasis on the incompetency of the appeal in the Ct. below because of the non-joinder of deft. 2 to the memorandum of appeal. He contended that a decree had been passed by the trial Ct. against both the defts. That decree cannot be varied in appeal so as to adversely affect the interest of deft. 2. But I do not think that the contention of the learned counsel is well founded. A similar point arose in the case of Radha Mohan v. Kishungir, AIR 1943 Pat 460. It was held there that under the provisions of O. XLI, R. 4, Civil P. C. the appellate Ct. was competent to set aside the decree of the trial Ct. also as against a deft, who was not a party to the appeal. O. XLI, R. 4, Civil P. C. runs as follows:

Where there are more pltfs. or more defts than one in a suit, & the decree appealed from proceeds on any ground common to all the pltfs. or to all the defts. any one of the pltfs. or of the defts. may appeal from the whole decree, & thereupon the appellate Ct. may reverse or vary the decree in favour of all the pltfs. or defts., as the case may be.

7. With all respect to the learned Judges who decided the case of Radha Mohan Singh afore said, I fully agree with the view taken by them so far as the powers of a Ct. under O. XLI, R. 4, Civil P. C. are concerned. Mr. Misra relied upon the decision in the case of Suraj Prakash Puri and Another Vs. Sant Lal Singh and Others, . But the case has no application to the present case. In that case two separate decrees had been passed against two sets of defts., out of whom only one set of defts. had come up in appeal. The question that arose for consideration there was whether under the provision of O. XLI, R. 33, Civil P. C. a Ct. was competent to give relief to that set of the defts. who had not filed an appeal against the decree passed against them. It was held there that a Ct. had no such power. In the present case, however, deft. 2, after sale of his share to deft. I, had no interest left in it. He did not contest the suit. To me it appears that he was not even a necessary party to the appeal. I do not think that in the circumstances of this case there was any error in the decree passed by the lower appellate Ct.

8. The learned counsel for the applts. lurther refd. to the case of "Gobind Dayal v. InayatuIIah, (7 All 775). The judgment in that case was given by a F. B. of five learned Judges of the Allahabad H. C. Mr. Misra drew our attention to a passage in the judgment of Mahmood, J. In my opinion, the judgment of that learned Judge is against the contention of Mr. Misra. While considering the right of a person who seeks pre-emption, the learned Judge said as follows:

But the Muhammadan Law of pre-emption involves no such anomalous inconsistencies of reasoning, because the right of pre-emption is not a right of re-purchase either from the vendor or from the vendee, involving any new contract of sale; but it is simply a right of substitution, entitling the pre-emptor, by reason of a legal incident to which the sale itself was subject, to stand In the shoes of the vendee in respect of all the rights & obligations arising from the sale under which he has derived his title. It is, in efiect, as if in a sale deed the vendees name were rubbed out & the pre-emptors name inserted in its place.

9. From the above passage also it is clear deft. 2 was not a necessary party to the appeal before the lower appellate Ct.

10. The learned counsel for the applt. further reld. upon the case of AIR 1942 366 (Oudh) , but the facts of that case were quite different from the facts of this case. In that case the vendor had come up before the H. C. against the order of the Ct. below refusing to let him join as a party to a pre-emption suit. As appears from that judgment, there was a subsequent contract between the vendor & the vendee by which the latter had contracted to sell the property to the vendor for some consideration with a specified period. On the basis of that contract it was considered that the vendor had not lost all interest in the property which was the subject-matter of the pre-emption suit. It was in these circumstances that the vendor was ordered to be joined as a party to the suit for pre-emption. But in the present case no right remained in the vendor. I, therefore, do not think that the non-joinder of the vendor was in any way fatal to the maintainability of the appeal. The lower appellate Ct. was therefore, Justified in reversing the decree of the trial Ct. & dismissing the suit of the pltfs.

11. Mr. Misra further argued that the lower appellate Ct. does not clearly mention to have exercised its discretion under the provisions of O. XLI, R. 4, Civil P. C. But, in my opinion, that is immaterial. An objection was raised before it regarding the maintainability of the appeal in absence of deft. 2. It overd. that objection & revsd. the decree of the trial Ct. Even if it did not specifically refer to the provisions of O. XLI, R. 4, Civil P. C., it would be deemed to have exercised its power under that provision.

12. The result is that the judgment & the decree of the lower appellate Ct. are affd. the appeal fails & is dismissed with costs.

Reuben, J.

13. I agree.