JUDGMENT

Wazir Hasan, A J C - This appeal arises out of a suit for pre-emption and the plaintiffs are the appellants. At the last hearing of this appeal the learned Counsel for the appellants withdrew the appeal so far as the appellants Sheo Dulare, Badri Prasad and Sheo Mangal are concerned. The appeal therefore in so far as these three appellants are concerned will stand dismissed.

2. It now remains to consider the question of the title of the fourth plaintiff Rameshwar to pre-empt the property in suit. The sale which has given rise to the suit for pre-emption was made by the father of Rameshwar in respect of plot No. 1085, situate in mahal Raghubar Dayal of village Dehgaon, paragana Safipur, district Unao.

3. At the last hearing of this appeal the issue was remitted to the lower Court for a finding as to whether Rameshwar is a co-sharer in plot No. 1067 in the capacity of a member of a joint Hindu family or otherwise. The khata in which the plot in suit is situate consists of that plot and plot. No. 1067. The argument in appeal was that in virtue of the plaintiff's interest as a member of a joint Hindu family in plot No. 1067 he was entitled to preempt the sale of plot No. 1085 in the status of a co-sharer. The Court below has found that issue in the affirmative and in favour of the plaintiff Rameshwar. The respondents have filed a cross-objection to the finding of the lower Appellate Court. In virtue of the subsequent developments which I shall presently state, it is not necessary to decide the objection, nor is it necessary to confirm the finding as a matter of fact for the disposal of this appeal.

4. The plaintiff Rameshwar's case was that he was a co-sharer by reason of his being a member of a joint Hindu family in plot No. 1067. Since the order of remand it has been held recently in this Court by a majority of Judges in the case of Gajadhar v. Lal Bihari A.I.R. 1925 Oudh 352 that a plaintiff cannot pre-empt the sale made by his father by reason of the fact that he is a co-sharer as a member of a joint Hindu family in some other portion of the tenure. The plaintiff's case must fail on his own allegation, and in that view of the case the finding as to whether as a matter of fact be was a co-sharer in plot No. 1067 by reason of his being a member of a joint Hindu family becomes unnecessary and that question must not be deemed to have been decided in this case. The plaintiff's title fails on his own allegations.

5. The appeal is therefore dismissed. As to the costs the appellant, Rameshwar, was justified in filing the appeal to this Court in view of the state of authority on the date of the appeal. His appeal fails by reason of the subsequent decision mentioned above. It is therefore fair that there should be no order as to costs in the appeal. I order accordingly.