SHINGHAL, J.—The defendants have been unsuccessful in both the courts below and have filed this appeal from the appellate judgment and decree of the District Judge of Ajmer dated July 22, 1961 in these circumstances.

2. The suit house is situated in Ajmer. Plaintiff Durga Prashad and pro-forma-defendant Raghunath Agarwal purchased that house from Mrs. S.R. Smith for Rs. 5,000/- under sale-deed Ex. A/1/5/5 dated October 4, 1946. Thereafter Durga Prashad and Raghunath Agarwal purchased a two-third share in the same house from G. M. Peters & G. V. Peters on November 9, 1946, for Rs. 5,000/- under sale-deed Ex. 6. Mohanlal and others, the contesting defendants, filed civil suit No. 67 of 1947 on February 5, 1947, laying a claim for pre-emption in respect of the sale made by Mrs. S. H. Smith. The suit was decreed in favour of the pre-emptors by judgment Ex. A. 1/5/1 dated July 33, 1951 which became final as no appeal was filed against it. The pre-emptors therefore became entitled to substitution in place of the present plaintiff and Raghunath Agarwal on payment of Rs. 5000/-. During the pendency of that suit, contesting defendants Mohanlal and others instituted another suit (No. 825 of 1947) for pre-emption on November 6, 1917, in respect of the sale made by C.M. Peters and G.V. Peters under sale-deed Ex. 6. That suit was also decreed by the trial court on 23-7-1951 and the the pre-emptors were held entitled to substitution on payment of Rs. 593/-, which was held to be the consideration for the sale. Ex. 2 is the judgment of the trial court in that case. Durga Prashad and Raghunath Agarwal (the present plaintiffs) felt aggrieved and filed an appeal which was decided by the learned District Judge of Ajmer by his judgment Ex.4

dated March 27, 1953. He upheld the claim for pre emption on payment of Rs. 5,000/- instead of Rs. 500/- and directed that if that sale price was not paid, the suit for pre-emption would stand dismissed. In the mean-time, Mohanlal and others, the contesting defendants in the present case, applied for execution of the two decrees which had been passed by the trial court on July 23, 1951 under judgments Exs. A. 1/5/1 and 2, and deposited Rs. 5,000/- in pursuance of the first judgment and Rs. 500/-, for the second judgment. The execution court rejected the application for stay of the execution proceedings even though the appeal of the present plaintiffs against the trial courts judgment Exhibit 2 was pending before the District Judge. Ultimately the execution court took the view that as the tenant who was occupying the entire suit house had attorned to the pre-emptors by admitting them as his landlords, there was nothing left for execution. The execution proceedings were therefore recorded in full satisfaction. As has been stated, the judgment (Ex. 4) of the court of first appeal in suit No. 825 of 1947 was pronounced on March 27, 1953 by which the claim for pre-emption was decreed on payment of Rs. 5,000/-. But the pre-emptors did not deposit the sum of Rs. 5,000/- so that their suit stood dismissed in default of that deposit. When the plaintiff found that this was so, he instituted the present suit on July 14, 1955 claiming that he and Raghunath Agarwal were the owners of the two-third portion of the suit house which they had purchased from the Peters brothers because the present contesting defendants did not pre-empt the sale in terms of the decree of the appellate court by paying Rs. 5,000/-. The plaintiff therefore sued for a partition of the two-third share purchased by him and the proforma-defendant, and for its possession and rendition of accounts. Thus far the facts are not in dispute.

3. A perusal of the plaint shows that the plaintiff specifically took the plea that the suit house was the property of Mrs. S.N. Peters, C.M. Peters and G.V. Peters, the daughter and sons of David Peters. He also pleaded that even though Mrs. S.M. Smith sold the house by the sale-deed (Ex. Al/5/5) dated Oct. 4, 1946 to him and

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