A co-tenant with a right of pre-emption has an independent right to bring a suit for possession of the land to which his right extends, even if he is a tenant-in-common with other co-tenants.

A.D.Koshal, J.

1. This second appeal has arisen in the following circumstance. One Ram Labhaya sold land measuring 12 kanals 4 marlas situated in village Diara, Tehsil Jagadhri, to the appellants by means of a sale deed dated the 14th of February, 1961, for Rs. 762/-. The respondent brought a suit for possession of the land by pre-emption on the ground that he and his two brothers named Rulia and Anantu were holding the land as tenants and that he, therefore, had a right of pre-emption as against the appellants-vendees. The suit was contested on the pleas that the respondent had no pre-emptive right, that he was estopped from filing the suit and that in any case he was bound to pay the expenses relating to the registration of the sale deed to the appellants.

2. The parties went to trial on the following issues :-

1. Whether the plaintiff has a superior right of pre-emption ?

2. Whether the plaintiffs is estopped to file this suit as alleged ?

3. Whether the defendants are entitled cost of registration and deed as alleged ?

3. The trial Court found issue Nos. 1 and 2 against the plaintiff and issue No. 3 against the defendants and consequently dismissed the suit on the 24th of July, 1962, leaving the parties to bear their own costs.

4. By his judgment dated the 3rd of April, 1963, Shri Salig Ram Seth, Senior Sub-Judge-Ambala, accepted the appeal preferred by the present respondent and passed in his favour a decree for possession of the land by pre-emption subject to payment by him of Rs. 762/- on or before the 15th May, 1963, with no order as to costs. I was directed that if the respondent failed to pay the sum just above-mentioned within time his suit would stand dismissed with costs. Reversing the finding of the trial Court on issue No. 1, the learned Senior Sub-Judge held that the respondent and his brothers Rulia and Anantu were in possession of the land in dispute as tenants at the time of the sale and thereafter and that, therefore, the respondent must be deemed to be having a share in every inch of the land. Reliance in this connection was placed on Lala Shyamlal Debidin Kalar v. Gond Singh and others, A.I.R. 1937 Nag. 175, and the conclusion reached was that the respondent had a preferential right of pre-emption. The argument that the tenancy being a joint one the suit was not maintainable by one of the brothers, was repelled. With regard to issue No. 2 the conclusion was that no act or conduct on the part of the respondent such as would operate by way of estoppel was proved. Apparently by a mistake, however, the learned Senior Sub-Judge remarked that the findings of the trial Court on issues other than issue No. 1 "are also affirmed".

5. It is against the decree passed by the learned Senior Sub-Judge that the vendees have come up in appeal to this Court.

6. The first contention raised on behalf of the appellant was that in view of the remark of the learned Senior Sub-Judge that the findings of the trial Court on issues other than issue No. 1 "are also affirmed", the suit of the respondent should have been dismissed. The remark is no doubt there, but, as pointed out by me earlier, it is obviously due to a slip which is of no avail to the appellants in view of the actual finding arrived at by the learned Senior Sub-Judge on issue No. 2 which was to effect that the alleged acts and conduct impugned to the respondent and said to operate as estoppel against him had not been proved and it must be held that the learned Senior Sub-Judge, in accordance with the findings arrived at by him on various issues, correctly decreed the respondents suit. The contention is, therefore, overruled.

7. The only other contention of learned counsel for the appellants was that the tenancy in question was held by the respondent and his brothers not as joint tenants but as tenants-in-common that each one of them had one-third share in it and that, therefore, the respondent could claim possession only of one-third of the disputed land. He