K.SUBBA RAO, J.

(1) THIS appeal by Special Leave against the judgment and decree of the High court of Patiala and East Punjab States Union raises an interesting question pertaining to the Law of Preemption.

(2) THE material facts are not in dispute and may be briefly stated: The dispute relates to a land measuring 179 kanals and 2 marlas, situate in village Wanderjatana. On 26/08/1949, defendants 3 to 7 sold the said land to defendants 1 and 2 for a consideration of Rs. 37,611.00. On 26/08/1950, defendants 8 to 11 instituted a suit, Suit No. 231 of 1950 (Exhibit P. 26/1) in the court of the Subordinate Judge, 11 Class, of the court of the Subordinate Judge, they filed the compromise deed in the court of the District Judge and on the basis of the said compromise, the District Judge made a decree ted 23/01/1951. It was provided in the decree that in case defendants 8 to I I failed to pay the balance to the vendees on 27/04/1951, the suit should stand dismissed and that if the said balance was paid on that date, the vendees should deliver possession of the land in dispute to them. Defendants 8 to 11 deposited the balance of Rs. 35,911.00 on April 23, 1.951, and got possession of the land on 17/05/1951.

(3) BEFORE the said defendants (8 to 11) deposited the amount in court under the terms of the compromise decree, the resondents herein, claiming to be owners of land in the same patti, filed Suit No. 13 of 1951 in the court of the Subordinate Judge, 11 Class, Faridkot, to enforce their right of pre-emption. To that suit the original vendors were impleaded as defendants 3 to 7, the vendees as defendants 1 and 2 and the plaintiffs in Suit No. 231 of 1950 as defendants 8 to 11. Defendants 8 to 11 contested the suit, inter alia, on the grounds that the plaintiffs had no right of preemption superior to that of theirs, that the suit was barred by limitation and that the whole of the sale consideration had been fixed in good faith and paid.

(4) THE learned Subordinate Judge found all the issues in favour of defendants 8 to 11 and dismissed the suit. On the main issue he found that the said defendants, by obtaining a decree for pre-emption before the rival claimants had filed their suit, had become vendees through court and so the plaintiffs could not succeed unless they had a superior right.

(5) THE plaintiffs preferred an appeal to the Additional Dist. Judge, Faridkot, against the said decree. The District Judge held that the plaintiffs and defendants 8 to 11 had equal rights of pre-emption and were entitled to share the sale in the proportion of 3/7 and 4/7 respectively on payment of the proportionate amount of the consideration. On the main question, he took the view that defendants 8 to 11 did not exercise their right of pre-emption when the present suit was instituted for the reason that by the date of the filing of the suit they had not deposited the purchase money in Court. Both the parties filed Second Appeals against the decision of the District Judge in the High Court of Patiala questioning that part of the decree which went against them. The High Court upheld that part of the decree of the learned District Judge holding that the plaintiffs were entitled to a share in the suit property but remanded the suit to the District Judge to give his findings on the following two questions : (1) What was the amount paid by defendants 8 to 11 to the original vendees and whether they paid it in good faith; (2) Whether the case would come under S. 17C Cl. (e) of the Punjab Preemption Act (hereinafter to be referred to as the Act). As the High Court refused to certify that the casewas a fit one for appeal to the Supreme Court, defendants 8 to 11 preferred the above appeal by obtaining special leave of this Court.

(6) THE learned Counsel for the appellants raises the following two contentions before us : (1) Section 28 of the Pre-Emption Act indicates that a property can be divided between equal pre-em