Bhandari, J.—This is an appeal on behalf of the plaintiffs appellants who have filed a suit for the possession of the house property described in the plaint situated in Jaipur City, The plaint filed by the plaintiffs Bhonri Lal and his son Gordhan Lal is somewhat complicated, but the learned counsel for the appellants, C.L. Agrawal, has clarified the position taken up by the plaintiffs on the basis of which they claim the possession of the property in dispute. For the proper understanding of the case following pedigree table is necessary—

Nanulal

Motilal

Bansidhar(Defendant No. 1) Bhonrilal(Plaintiff)

Gordhanlal (Plaintiff) Shri Kishen Ram Kishen

Motilal had sold the property in dispute to Jagannath respondent by the sale deed dated the 7th August, 1942, for Rs. 860/-. Thereupon, Bhonrilal and Gordhanlal instituted a suit against Bansidhar and Jagannath in the court of Sub-Judge Jaipur City on 6th October, 1942 praying that the property alienated was the ancestral property in the hands of Motilal and as the alienation was without legal necessity it should be declared null and void. The learned Sub-Judge decided on the 7th May, 1953, that the sum of Rs. 499/- out of the sale consideration was for legal necessity to discharge the mortgage money on the disputed property in favour of the third person and to that extent the sale was valid and for the rest of the amount it was invalid. He passed a decree for declaration that the sale deed is valid to the extent of Rs. 499/-, out of the sum of Rs.860/- spent in the redumption of the mortgage deed and for the rest of the amount that is, Rs. 361/- it was invalid. After the suit had been decreed, the sale deed was registered on the 9th of December, 1944. Motilal also died on the 2nd of May, 1945. The plaintiffs appellants have brought this suit on the 21st of November, 1945, for the recovery of the entire house property on the following grounds—

(1) That the Plaintiffs are entitled to l/3rd of the house property (Motilal and Bansidhar being entitled to the rest 2/3rd) on the payment of l/3rd of the amount for which the sale deed has been held to be valid.

(2) That the plaintiffs are entitled to the rest 2/3rd of the house property on the basis of pre-emption as they claimed themselves to be co-sharers in the disputed property.

3. After the death ofMotilal,the plaintiffs could have claimed one half of the property, but they claimed only one third. The plaintiffs also claimed the rest2/3rd property under sec. 4 of the Indian Partition Act. But I need not discuss this point as Shri Agrawal has rightly confined his arguments to the above mentioned two grounds for claiming the whole of the disputed property. It may also be noted that in the plaint the plaintiffs have alleged that Motilal and his two sons namely the plaintiffs Bhonrilal and the defendant Bansidhar were separate since 1940. The defendant No. 2 Jagannath raised various pleas in the written statement and those that are material for the purposes of deciding this appeal are as follows—

(1) that the suit is barred by the principles contained in Order II, rule 2 of the Civil Procedure Code.

(2) that the plaintiffs cannot prefer any claim on the ground of pre-emption as they themselves should be deemed to be the vendors, because Motilal, father of the plaintiffs Bansidhar and grand father of the plaintiff Gordhanlal, was the vendor of the house property on behalf of the joint family.

4. The suit was instituted on the 8th of September, 1945, in the court of Munsif East, Jaipur City, who decreed the claim of the plaintiffs for possession of the disputed property to the extent of 361/2580 (1/3x361/860) On appeal by the respondent Jagannath, the aforesaid decree of the munsif was reversed and it was held that the suit was barred under Order II, rule 2 of the Civil Procedure Code. Hence this appeal on behalf of Bhonrilal and Gordhan.

5. Bhonrilal died during the pendency of this appeal and his two other sons Shri kishen and Ram Kishore nave als

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