A half-brother is entitled to pre-empt under section 15 (1) (c) Thirdly and section 15 (2) (b) Secondly of the Punjab Pre-emption Act, 1913.

( 1 ) THIS second appeal raises the interesting question whether a father s half-brother is the father s brother within the meaning of section 15 I (e), Thirdly, and the husband s brother within the meaning of section 15 (2) (b ). Secondly, of the Punjab Pre-emption Act, 1913. The trial Court held that such a half- brother was entitled to pre-empt, while the lower appellate Court held that he was not.

( 2 ) THE plaintiff in the suit is Jhanda son of Zilam He filed the suit out of which this appeal arises for pre-emption against Dharam Das to whom the lands in dispute had been sold by Jodha and Bhauni, sons of Rosa. and by Shivju, wife of the said Rosa. Rosa was also a son of Zalam but from a different wife. It was alleged in the plaint that the land in suit had been sold by Jodha, Bhauni and Shivju, hereinafter collectively referred to as "vendors", for an ostensible sale price of Rs. 1,500. 00 which was not actually paid nor fixed in good faith and that the market value of the said land was not more than Rs. 1,000. 00. It was also pleaded in paragraph 3 of the plaint that the plaintiff Jhanda was also a co-sharer of the vendors. The trial Court framed the following issues :-

1. Whether the plaintiff has a superior right of pre-emption?. 2. Whether the sale price has been fixed in good faith and actually paid?. If not what is the market pries of the land at which the sale is pre-emptible?. 3. Relief.

( 3 ) ISSUE No. 2 does not arise for determination because, as it appears from the judgment of the lower appellate Court, the plaintiff s counsel conceded that the sale price had been fixed in good faith and actually paid. Upon issue No. 1 no clear finding was given by the trial Court as to whether the plaintiff was a co-sharer, as alleged. Bat the trial Court held that even though the plaintiff was a half-brother of the said Rosa, he had a right to pre-empt. Accordingly, a dacree for possession by way of pre-emption was passed by the trial Court.

( 4 ) IN appeal, the question whether the plaintiff appellant was a co-sharer or not was "not urged and the lower appellate Court gave a decision only on the question whether the plaintiff, being the half-brother of the said Rosa, could claim pre-emption. The lower appellate Court came to the conclusion "that a brother and a half blooded brother cannot be considered to be on the same footing as fir as right of pre-emption is concerned" and, upon that conclusion. allowed the appeal and dismissed the suit.

( 5 ) IN this second appeal Mr. M. R. Gupta, learned counsel for the appellant, who was the plaintiff, wanted to contend that the appellant s claim to pre-empt should be considered also from the point of view as to whether he was a co-sharer or not and he urged that even if I am against the appellant on the main question in the appeal the appeal should be remanded back for a finding by the trial Court upon the question as to whether the appellant could claim pre-emption as a co-sharer. In view of the fact that the claim of the appellant based upon his being a co-sharer was merely urged in the plaint and was not even urged before the lower appellate Court, I do not find any justification in this prayer and I reject the same.

( 6 ) THE only question therefore, that is left to be decided is whether as a father s brother of Jodha and Bhauni and husband s brother of Mt. Shivju, the appellant could claim pre-emption under section 15 ( l ) (c ). Thirdly, and section 15 (2) (b), Secondly, of the said Act. The appellant claims that this question is now concluded by a Full Bench of the Punjab High Court in the case the decision of which is reported in 1967 ( LXIX ) Punjab Law Reporter 1041 ( Moti Ram v. Bakhwant Singh) where it has been held that a step brother is a brother not having been excluded by the Legislature from exercising his right of pre-emption. On the oilier hand, the contention on behalf of the learned counsel for the respondent is that I am bound by the decision of a Ful