Judgment

K. C. DAS GUPTA, J. : Though a number of questions, some of fact and some of law were originally raised in this suit for pre-emption, the main question for consideration in this appeal from the judgment of the High Court of Patna reversing the decree for pre-emption granted by the Trial Court, the Subordinate Judge of Monghyr, is the question on which the High Court based its decision of reversal. That question is whether the ceremonies essential for exercising the right of pre-emption were properly performed. Issue No. 9 in which this question was raised is in these words:

"Did the plaintiff perform the ceremonies of Talab-E-Mowasibat and Talab-E-Ishtashad as required by law?"

2. The plaintiff Radha Prasad Singh brought this suit for pre-emption in respect of 5 items of property described in Schedule B of the plaint which along with certain other properties were sold by the Defendant 2nd Party Mst. Jogeshwari Kumari alias Jogeshwari Kumari widow of Babu Ganga Prasad Singh deceased and daughter of Babu Narsingh Prasad Singh by a deed executed on 18-11-1943, at Moghra and registered on 23-11-1943, at Monghyr.

3. The Trial Court held that the plaintiff had failed to prove that he was a co-sharer in respect of Item 2 of Schedule B. As regards the other 4 Items of properties he held that the plaintiff was a co-sharer and as already indicated he gave the plaintiff a decree for pre-emption in respect of these 4 Items.

4. The sale-deed is in favour of the defendant first party, Gajadhar Singh. It is no longer disputed, however, that Gajadhar Singh was a mere Benamidar and the real purchaser by this deed was Babu Lakshmi Prasad Singh, his son Satya Narain Singh and others.

5. A dispute was raised as to whether 4 annas 5 gandas odd share of Mauza, Majhaul Kilan Shri Ram was sold or the entire 8 annas odd share of the vendor was sold. It has been held by both the Courts below that the plaintiff s original case that the 4 annas 5 gandas odd share of Majhaul Kilan Shri Ram was sold is not correct and that really 8 annas odd share, the entire interest of the vendor in this property was sold by the deed, but that after the registration of the sale deed it was tampered with and by an act of forgery the 8 annas odd share was altered fraudulently to 4 annas 5 gandas. It was after the defendant s pleading in the written-statement that 8 annas odd gandas of this Mauza was sold and not 4 annas odd gandas as mentioned in Schedule B, that the plaintiff prayed for and obtained an amendment of the plaint by which an alternative prayer for pre-emption in respect of 8 annas odd share of this Mauza was made. But for this amendment it is obvious the prayer for pre-emption could not be granted as being only for a partial pre-emption, once it has been found that 8 annas odd gandas were sold and not 4 annas odd gandas. One question which was therefore raised was whether the amendment was rightly granted by the Trial Court. The question that the suit as brought was for partial pre-emption was also raised from another aspect, viz., that though the sale of this Mauza, Majhaul Kilan Shri Ram was of all villages Asli Mai Dakhili, i.e., original with dependencies, there is no prayer for pre-emption in this suit in respect of Dakhili villages. As already indicated, however, the main question in controversy was whether the essential ceremonies required in law, i.e., Talab-E-Mowashibat and Talab-E-Ishtashad were performed in accordance with law.

6. As regards this the plaintiff s case is that he came to know of this sale by his co-sharer Jogeshwari for the first time on 2-1-1944, at about 11 a. m. when Jadunath Singh, a resident of Majhaul informed him of this and that he at once completed the formality of Talab-E-Mowashibat in the presence of some persons and that shortly after this he went to the properties of Tauzis 1130, 4201 and 1136, and also Mauza Buzurgabad and performed Talab-E-Ishtashad; that he went then to the residence of the purchaser Gajadhar Singh