JUDGMENT

Zafar Ali, J. - The three second appeals Nos. 1332, 1333 and 1344 of 1927 arise out of two identical pre-emption suits, and the only question involved in all of them is whether the sales on which the suits were based gave the plaintiff a right of pre-emption; and if they did, what was the consideration for each sale and could it be paid. The plaintiff succeeded in both the Courts below. The facts that need be stated to determine the above questions are as follows:

2. Two sonless proprietors named Nikka and Naraina having sold certain lands individually by three separate deeds their collaterals, Hamira and others, instituted the two suits, one against each vendor and his vendee or vendees for a declaration that the sale or sales effected by him would be inoperative as against their reversionary rights. After issues had been framed, but before evidence, these suits were compromised. The vendees resold the lands to the reversioners for certain sums somewhat less than they had paid to their vendors and the reversioners mortgaged the same to them for the same amounts. The deeds of sale as well as of mortgage were executed and registered together, and the suits were then withdrawn.

3. One of the pre-emptors is a son of one of the original vendees and one is a collateral of another.

4. Now, there can be no manner of doubt that the transactions, as evidenced by the registered sale-deed were sales, but at the same time it is clear that the sales were effected in pursuance of a compromise based on the principle of give-and take. The reversioners gave up their claim as put forward in their plaints and the original vendees gave up the lands. As the reversioners had not got the purchase money to pay up at once, they left the lands in mortgage with the vendees for that money. If instead of executing sale-deeds the parties had executed a deed of compromise embodying the same terms, a decree would have followed on that compromise and that would not have given rise to a claim for pre-emption. The deeds, however, give effect to the terms settled for compromising the suits and were executed as a matter of fact to create evidence of that compromise.

5. Even if it were decided that the transactions were sales pure and simple, then the question is what was the consideration for each sale. It was not only the money which the reversioners contracted to pay, but also the abandonment of their rights to secure which they had instituted the suits. It is obvious that the vendees one and all would not have agreed to re-sell the lands to the reversioners if they had not been apprehensive of the results of the litigation. Thus the reversioners got the lands not as ordinary purchasers, nor in pursuance of a bargain in open market, but as reversioners. It follows, therefore, that besides the money that they agreed to pay there was the additional consideration for the sales that the suits were withdrawn. This additional consideration cannot be valued in money, but the pre-emptors must pay the whole of the consideration before they can get the lands. As they cannot possibly do this, they cannot succeed in their suits. They cannot deprive the reversioners of what the latter have got as such. For all these reasons I am of opinion that the suits for pre-emption must fail.

6. Before concluding the judgment a preliminary objection raised by the respondents' counsel must be noted. This was that the appeal was barred by time because according to the office note it was returned to the appellants' counsel to be re-filed within a week, but it was actually re-filed long after the expiration of that week. Along with the memorandum of appeal in each case copy of the judgment of the trial Court was attached, but the office wanted that copy of the detailed judgment of the trial Court, which was filed in one case should also be filed in the other case. It was not necessary for purposes of the appeal to file that copy, but the appellants' counsel obtained an additional copy o