Fazl Ali, J.This is an appeal by the plaintiffs in a pre-emption suit in which they claimed certain proprietary shares in tauzi Nos. 12832, 4208, 4285 and 4301 which had been sold by defendants third party to defendants first party and defendants second party respectively by two sale deeds on 4th July 1927. Their case was that they came to know of these sales on 9th July 1927 and plaintiff 1 immediately performed the ceremony known as talab mowasibat and that shortly afterwards he went to the place where the properties were situated and performed the ceremony of talab istishad in the presence of witnesses, and lastly he went to the house of the defendants and made a demand from them of the properties purchased by them on the ground that he had a right of pre-emption and that he had performed the ceremonies required by law to enforce that right.

2. A number of pleas were taken by the defendants in answer to the suit, but we are concerned in this appeal with three of them which are as follows:

(1) That there was misjoinder of defendants and cause of action in the suit; (2) that the defendants themselves were cosharers in the properties sold and therefore the plaintiffs had no right of pre-emption as against them; and (3) that the plaintiffs never performed any of the ceremonies required by law nor did they make any demand for the properties in question from the defendants. The learned Subordinate Judge has accepted all these pleas and decided the case against the appellants. Mr. Janak Kishore who appears for the appellants challenges the correctness of the decision of the learned Subordinate Judge on all these points. The question as to whether there was a misjoinder is not a very serious one though in my opinion the view taken by the learned Subordinate Judge is correct in law. Order 1, Rule 3 clearly lays down that:

All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such person, any common question of law or fact would arise.

3. Mr. Janak Kishore contends that as the questions of law and fact which arose in the present case between the plaintiffs and the two sets of contesting defendants were identical, it was permissible to join them in the same suit. He however overlooks the fact that the important condition which is laid down by the rule is that the right to relief against all the defendants must arise out of the same act or transaction or series of acts or transactions. Here the transactions which affect the two sets of defendants are separate inasmuch as they purchased different properties and each of them got a separate sale deed executed by the defendants third party. It appears to me therefore that the view taken by the learned Subordinate Judge is correct. Reliance is placed however on Harendra Nath Singha Ray Vs. Purna Chandra Goswami and Others, . That decision was based almost wholly on certain English authorities and the analogy of the rule of procedure which 13 followed in English Courts and the facts of that case were also different. In my opinion the present case will have to be decided on its own facts and those facts do not seem to be covered by Order 1, Rule 3.

4. However that may be, I do not attach much importance to the question of misjoinder because if that was the only point to be made as against the plaintiffs, I would have had no hesitation in giving them leave to amend their plaint even at this stage. In fact the procedure which should have been adopted by the lower Court was to have decided the issue about the misjoinder of defendants first and then to give leave to the plaintiffs to amend their plaint. The second point which has been decided by the learned Subordinate Judge against the plaintiffs is that, the defendants being cosharers with the plaintiffs in the properties which are the subject-matter of this suit, the latter have no right of preemption as against the former. Mr. Janak Kishore has pointed out that although this was the view expressed by a Full Bench of the Calcutta High Court as long ago as in the year 1878 in Lalla Nowbut Lal v. Lalla Jeewan Lal (1879) 4 Cal 831 that view has been abandoned since by more than one High Court and the view which now prevails is that under the Mahomedan law, even when the buyer is himself a pre-emptor, that is a person who would have the right of pre-emption against an outsider, other persons having a similar right of pre-emption are entitled to claim pre-emption against the buyer; and, in Such a case, the rights of the claimants to pre-emption should be determined in the same way in which they would have been determined had the buyer acquired the property by enforcing his right of pre-emption against a stranger, in the absence of the other pre-emptors and the absentee pre-emptors appeared subsequently and claimed pre-emption.

5. This was the view which was laid down by a Division Bench of the Allahabad High Court in Amir Hasan v. Rahim Baksh (1888) 10 All 466 in which a number of original texts on the subject were elaborately discussed and considered. The same view was reiterated by the Allahabad High Court in Muhammad Yakub v. Kannai Lal AIR 1922 All 157 and Ganga Sahai and Others Vs. Mukarram Ali Khan, and was adopted by the Bombay High Court in Vithal Das v. Jametram AIR 1920 Bom 343 and by a Full Bench of the Calcutta High Court in Enatullah Vs. Sheikh Kowsher Ali and Others, .

6. It seems to be settled law now that according to the Mahomedan law of pre emption, where both the vendee and the pre-emptor are in the category of pre-emptors, the result is not the dismissal of the suit, but that the property must be shared by the two claimants. It is to be noticed however that in all the cases to which I have referred excepting the cases of Vithal Das v. Jametram AIR 1920 Bom 343, the parties were Mahomedans and a question may arise whether the rule which was laid down by the Full Bench of the Calcutta High Court in Lall Nowbut Lall v. Lalla Jewan (1879) 4 Cal 831 and which has been followed at least since 1878 whenever the question of pre-emption has arisen as between Hindu parties can now be disturbed.

7. In fact I find that the decision of the Calcutta. High Court in 1878 was based on two earlier decisions of the same Court in Baboo Moheskee Lal v. G. Christian (1866) 6 WR 250 and Tekadhari Singh v. Mohar Singh (1867) 7 WR 260 respectively. In the last case Shambhu Nath Pandit, J., observed that:

the Mahomedan law of pre-emption was never intended to apply to a case in which the purchaser is not a stranger, but one who is already either a share-holder or a neighbour.

8. I do not wish however to express any decided opinion on this point because in my view the plaintiffs appeal must fail on the merits. The real question is whether the ceremonies prescribed by law were in fact performed by the plaintiffs. The learned Subordinate Judge has in answering this question in the negative placed great reliance on Exs. A and B and I think that those documents make it highly improbable that the plaintiffs claimed the properties in dispute by way of pre-emption at the time when they allege to have done so. In order to understand these two documents it is necessary to mention certain facts.

9. One Sadasiv Singh had two sons Samodhi and Busti. Busti had a son Udit and Samodhi had several sons and daughters, one of whom was Nandhar Kuer. After the death of Samodhi and Busti Udit claiming to have succeeded to the entire property of the family by survivorship executed a deed of gift in favour of the plaintiffs in respect of all those properties which also included the properties in dispute in this case. On the other hand Nandhar Kuer claiming to own an eight annas share in these properties executed a deed of gift in favour of her nephew Rajbansi, defendant third party. Rajbansi then transferred certain shares in these properties to the defendants first and second party. The position thus was that at the time the sale-deeds were executed, the plaintiffs had already in their possession a deed of gift which had been executed on the assumption that Mt. Nandhar Kuer had no interest in the property conveyed by it and the whole of it belonged to Udit Singh.

10. So in a proceeding u/s 144, Criminal P.C., between the parties, plaintiff 1 filed a written statement on 17th August 1927 in which he alleged that defendant 7 had no title or possession and that the sale-deeds were farzi documents which had been executed for no consideration and were not followed by delivery of possession. Subsequently in a petition filed by plaintiff 1 on 30th November 1927 in the land registration proceeding he made the following statement:

That Babu Rajbansi Singh was never in possession of the share against which his name is sought to be registered. The share against which his name is sought to be registered is all along in possession of this objector and so the name of the applicant cannot be registered.

11. Nowhere in any of these proceedings the plaintiffs suggested that they had a right of pre-emption in the properties in dispute, but on the other hand they contested both the title and possession of the defendants. It appears to me therefore that if until as late as 17th August 1927 and 30th November 1927 the plaintiffs were not prepared to acknowledge that the defendants had acquired any right under the sale deeds of 4th July 1827, it does not stand to reason that he would have gone to the defendants in the month of July and offered a sum of Rs. 6,000 to them and asked them to re-convey the properties to him. The evidence adduced by the plaintiffs on this point is not at all reliable and has, in my opinion, been rightly rejected by the trial Court. Besides plaintiff 1, the plaintiffs have examined three witnesses to prove that plaintiff 1 had performed the necessary ceremonies and made a demand of the properties from the defendants and these are P. Ws. 2, 3 and 4. P.W. 2 admits that he is an agnate of the plaintiff and that he and the plaintiff have jointly executed a zarpeshgi in favour of another person.

12. He was not prepared to deny that he had deposed for the plaintiff in a criminal case only a short time before he gave evidence in the present suit.

P.W. 3 admits that his home is in Mauza Pokhaira which is 18 koses from Gangpur where plaintiff 1 resides, but he explains his presence at Gangpur by claiming to have a house in that village also. When cross-examined however as to whether he paid any chaukidari tax for the house or not he said that he could not say if chaukidari tax was to be paid for that house. P.W. 4 admits that he holds land in the plaintiffs patti; that he does not pay rent to the defendants, but to the plaintiffs and says that he does not know if defendants 1 to 6 got his lands sold for arrears of rent.

13. The evidence of these witnesses has been read out to us in extenso and I entirely agree with the learned Subordinate Judge that they are not witnesses of truth.

In my opinion plaintiff 1 never performed the pre-emption ceremonies nor made any demand of the properties from the defendants, and the plaintiffs have brought this suit as a last resort after having unsuccessfully challenged the right of the defendants in the proceeding u/s 144, Criminal P.C., and the land registration proceedings. I would in these circumstances dismiss the appeal with costs.

Rowland, J.

14. I agree.