The right of pre-emption is a right of substitution entitling the pre-emptor to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale.

RAI, J.

1. 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 in- fructuous & 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 penormed. 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 does 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/s. Kishungir, AIR (35) 1948 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 aforesaid, 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 V/s. Sant Lal, (AIR (37) 1940 Pat 137). But the case has no application to the present case. In that case two separate decrees had been