1. This second appeal by Baliram, defendant No. 1, arises out of a suit for pre-emption.
2. The plaintiffs 1 and 2, Bapurao and Kondba are brothers. Plaintiff No. 1 was taken in adoption in 1935 by his uncle Wadla. His name before adoption was Deorao. They are occupants of survey Nos. 7/2 and 7/5 in mouza Gondegaon. Defendants 2 and 3, Fakirji and Shiwaji, were occupants of survey Nos. 7/1 and 7/3-A, area 9 acres and 4.30 acres respectively. They sold the said survey numbers to the appellant by a registered deed of sale Exhibit P-3, dated 14-11-1949, and delivered possession to him. The sale was effected without giving notice to the plaintiffs as required by S. 176, Berar Land Revenue Code (hereafter called the Code). The case of the plaintiffs was that they had joint interest in survey Nos. 7/2 and 7/5. They alleged that the numbers were wrongly shown in the sale deed. The correct numbers, according to them, were 7/1A and 7/1. They claimed pre-emption and possession on payment of Rs. 2,800/- on the ground that the consideration of Rs. 4,000/- shown in the sale deed was bogus and that Rs. 1,200/- were returned immediately after the sale-deed had been registered. The claim was contested by the appellant alone. The suit proceeded ‘ex parte’ against defendants 2 and 3. The defence was that the plaintiffs were not joint co-occupants inasmuch as a partition had been effected between them by metes and bounds and they were in separate possession of different portions of land. The suit was not maintainable as two occupants having separate and demarcated shares could not join together as plaintiffs. It was pleaded that the consideration was genuine and the market price was Rs. 4,000/-.
3. Both Courts found that the market price was Rs. 4,000/- and the consideration shown in the sale deed was fixed in good faith. The trial Court dismissed the suits on the ground that the plaintiffs could not join together and claim pre-emption. In appeal, the plaintiffs applied for amendment of the plaint in respect of the numbers of the fields sought to be pre-empted. They stated that the numbers of the fields mentioned in the sale deed were correct and that the numbers and the area given in the plaint were incorrect. The appellant objected to the amendment, but the Court allowed it subject to payment of costs of Rs. 25/- by its order, dated 15-7-1952. Rs. 25/- were paid to the appellant as costs on 27-8-1952. The appellate-Court held that the suit was maintainable in spite of the plaintiffs having separate interest in the fields.
4. Learned Counsel for the appellant has raised two contentions. The first contention is that the amendment should not have been allowed as the period of limitation had expired and that it was not ‘bona fide’. He says that the amendment changed the nature of the property. There is no substance in this contention. The plaintiffs' object was to claim pre-emption of the fields sold by defendants 2 and 3 to the appellant. They were labouring under a mistake in regard to the numbers, but later they discovered that the numbers of the fields as shown in the sale deed were correct. In the circumstances, no prejudice could be caused to the appellant by the amendment. In fact, in the interests of justice, the amendment should have been allowed. There is another reason why the contention is untenable. The defendants accepted costs and it was not open to them to object to the amendment: See — ‘Kannalal v. Bhagwandas’, AIR 1949 Nag 5 (A).
5. The second contention of the appellant is that the two co-occupants having the right of preemption cannot jointly claim pre-emption in view of the last part of S. 179(1)(b) and S. 179(2) of the Code. Reliance is placed on — ‘Mahadeo Vyankati v. Abbasbhai Hasanali’, AIR 1948 Nag 134 (B). The relevant provisions are:
“Section 179(1): When a right of pre-emption is claimed by more than one occupant in a survey-number the prior right shall belong—
(b)……… If no occupant is related to him (i.e, the transferring occupant), to the occupant who has largest interest in the sub-division.”
“Section 179(2): If two or more occupants are equally entitled to the right, the person to exercise it shall be determined by lot.”
6. It is no longer open to the plaintiffs to urge that they were joint co-occupants in view of the admission of Bapurao, plaintiff No. 1, on the point of separation in the witness-box and other evidence. The trial Court held that there was a partition between the plaintiffs and they were in separate possession of demarcated land. In appeal, they did not challenge the finding. We have to decide the question of the correctness of the appellate decree on the basis that each of the plaintiffs is an occupant and is in possession of the land in his own exclusive right.
7. Section 179(1)(b) which deals with priority in pre-emption has no application. In this case, each plaintiff is equally entitled to the right. There is, however, no contest ‘inter se’ between them. They ask for a decree of joint possession upholding their right to pre-empt. In our view, the question of drawing lot arises when the occupants equally entitled cannot agree among themselves as to who should enforce the right. There is no bar in the Code to two occupants equally entitled to the right from joining as plaintiffs and claiming a joint decree. The right in this case arises under S. 183 of the Code. The relevant words in sub-s. (1) are that ‘the other occupants in the survey number shall have a right to pre-empt the interest transferred.’ It is open to the occupants to join together in one suit to enforce the right of pre-emption under sub-s. (2) of S. 183.
8. The decision on which strong reliance is placed by the appellant's learned Counsel is AIR 1948 Nag 134 (B). The sole question there was whether the appellant or the respondent had a preferential right of pre-emption. Annapurnabai sold 2.20 acres of land in survey No. 44/1. The other-occupants were Mahadeo (appellant) and his brother having 3.15 acres in that sub-division. Hasanali owned 2.29 acres in survey No. 44/2. After his death, it was inherited by respondents 1 to 3 as co-heirs. Both the appellant and respondents 1 to 3 filed two separate suits for the enforcement of the right of pre-emption. The suits were consolidated. The lower Courts held that respondents 1 to 3 had a preferential claim and were entitled to a decree. Padhye, J. took a contrary view and upheld the claim of Mahadeo. He took the view that cl. (a) and not cl. (b) of S. 179 was applicable and therefore Mahadeo had a superior right of pre-emption. He further observed that even imder cl. (b) the claim of respondents 1 to 3 was inferior as the interest of appellant Mahadeo was half of 3.15 acres while the share of each of the respondents was only 36 gunthas. We consider that his observations at page 135—
“The Berar Land Revenue Code does not permit a decree for pre-emption being passed in favour of more persons than one. This is clear from sub-section (2) of section 179 of the Code. By virtue of section 173 of the Code each one of the three plaintiffs is an occupant entitled to exercise the right of pre-emption. They are moreover equally entitled to the right but no decree can be jointly passed in their favour. Under sub-section (2) of section 179, the person to exercise it shall have to be determined by lot.”
9. Were not necessary for deciding the controversy between Mahadeo on the one hand and the respondents I to 3 on the other. It does not appear that there was any contest between the respondents themselves. The observations were obiter. We respectfully disagree with the interpretation of the learned Judge. There is no bar to the passing of a decree for pre-emption in favour of more persons than one. Where occupants are equally entitled and each has filed a separate suit, the dispute may be resolved by drawing lot or by the plaintiffs making an election. If they choose to enjoy the benefit jointly accruing from the exercise of the right of pre-emption, they can be given a joint decree in the absence of a specific provision imposing an embargo on joint decree.
10. In — ‘Mahomed Wajid Ali Khan v. Puran Singh’, AIR 1929 PC 58 (C) a joint decree for preemption was obtained by 4 plaintiffs. The defendant appealed and the decree was set aside. In execution proceedings for restoration, it was found that one of the plaintiffs had died during the pendency of the appeal and the appeal was determined without joining his legal representatives. The executing Court held that the defendant was not entitled to restoration of possession as against the legal representatives of the deceased plaintiff if they were prepared to pre-empt him. In appeal, the High Court took the view that the whole appeal had abated and that the appellate decree was incapable of execution. It allowed the appeal of the surviving plaintiffs and they were restored to possession. The Privy Council restored the order of the executing Court and set aside the decree of the High Court. It upheld the right of the legal, representatives of deceased plaintiff to pre-emption. The following observations of their Lordships support the view that a joint decree for pre-emption may be passed:
“On the other hand, two or more co-sharers may simply sue the stranger-purchaser for pre-emption, as in the present case, without asking the Court to adjudicate on their rival claims, and may obtain a decree for possession on depositing the pre-emption money in court. In their Lordships' opinion, the effect of that decree is to establish, as against the defendant, the right of each of the plaintiff co-sharers to pre-empt him and to entitle them to possession on depositing the pre-emption money, leaving them to adjust their shares and priorities among themselves, these being matters in which the defendant has no concern so long as the pre-emption money is secured to him.”
11. In our opinion, once the right of pre-emption is established, it is not open to the defendant to resist the claim on the ground that lots have not been drawn. It is for the plaintiffs to settle the matter whether they should enjoy the right severally or jointly. The decision of the lower appellate Court is correct. The appeal fails and is dismissed with costs.
12. Appeal dismissed.