JUDGMENT

Achhru Ram, J. - On 1st September 1942, Jagan Nath, Ram Lal and Hans Raj, defendants 2 to 4, and Nand Lal, father of Sohan Lal and Dina Nath, defendants 5 and 6, sold a house and a shop adjoining each other and situated in the town of Dipalpur in the Montgomery District to Mehta Sundar Das, defendant for a consideration of Rs. 2700 for the house and Rs. 800 for the shop. On 5th October 1943, Phul Chand, plaintiff, sued to pre-empt the sale in so far as the house was concerned, alleging that custom of pre-emption prevailed in the town generally and that he owned a shop contiguous to the house in suit and had, therefore, a preferential right of pre-emption. Pre-emption was also claimed in the first instance on the ground of the plaintiff's house having a common entrance from the street with the suit house. This ground of claim was, however, abandoned oh 8th February 1944. The plaintiff's suit was dismissed by the learned trial Judge on the ground that the vendee's shop, which was shown in the plan Ex. PL, by the letter Y and which he had purchased by means of the aforesaid sale-deed also adjoined the house in suit, and that therefore the plaintiff could not claim a superior right of pre-emption merely on the ground of contiguity. On appeal, the learned District Judge confirmed the decision of the trial Court. The plaintiff has come up in second appeal to this Court.

2. The appeal was heard by a Division Bench on 20th February 1946. In non-suiting the plaintiff the Courts below had followed a Division Bench judgment of this Court reported in Kewal Krishan v. Jain Brotherhood Ludhiana A.I.R. 1939 Lah. 77 in preference to a Pull Court judgment of the Chief Court in Sanwal Das v. Gur Parshad (09) 90 P.R. 1909. In the latter case it had been held that when two houses adjoining one another are sold jointly and a suit to pre-empt the sale of one of the houses only is brought by its contiguous owner who has no superior right of pre-emption in respect of the other house, the vendee cannot successfully resist the suit on the strength of ownership of the adjoining house purchased by means of the same sale deed. In Kewal Krishan v. Jain Brotherhood Ludhiana A.I.R. 1939 Lah. 77, however, a Division Bench presided over by Addison and Earn Lall, JJ., took a contrary view. In arguing the second appeal before the Division Bench Mr. Badri Das, the learned Counsel for the appellant, challenged the correctness of the decision in Kewal Krishan v. Jain Brotherhood Ludhiana A.I.R. 1939 Lah. 77 and contended that the Pull Court judgment of the Chief Court in Sanwal Das v. Gur Parshad (09) 90 P.R. 1909 laid down the law correctly. In view of the conflict of judicial opinion as disclosed by the aforesaid two judgments, the Division Bench referred the case to a Full Bench.

3. In Sanwal Das v. Gur Parshad (09) 90 P.R. 1909 the trial Court dismissed the plaintiff's suit on the ground that the plaintiff's right of pre-emption extended to both the adjoining houses that had been sold as one property and was not confined merely to the house immediately adjacent to his own, and that by confining his claim only to the latter he should be deemed to have sued for partial pre-emption. The Divisional Judge on appeal did not agree with this view. He, however, upheld the decree of the trial Court, dismissing the suit on the ground that the vendee was also at the date of the suit the owner of property adjoining the house in suit which he had purchased along with the suit house, and therefore had a right of pre-emption equal to that of the plaintiff. A second appeal from this decree was heard by a Bench consisting of Chevis and Chatterjee, JJ. Chevis, J. felt inclined to agree with the view taken by the trial Court as to the suit being for partial pre-emption of the sale. He also agreed with the view of the Divisional Judge as to the vendee's right to successfully resist the suit on the strength of his ownership of the adjoining house which he had purchased along w