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Judgment
This appeal arises out of a suit for pre-emption. The Court of first instance dismissed the suit. The lower Appellate Court gave a decree. One Angnu was the vendor. The vendee was a stranger. In the first instance only the vendee put in a written statement. He alleged that after the commencement of the suit he had resold the property to the original vendor. He put in further the plea that the consideration mentioned in the sale-deed was the correct consideration, Later on the vendor also appeared and put in a written statement alleging amongst other things that the plaintiff had refused to purchase. The Court of first instance found that the plaintiff had refused to purchase and it was on this ground that the suit was dismissed. The lower Appellate Court disbelieved the evidence as to refusal and granted the decree. Two points have been urged before us in the appeal. The first relates to the finding of the Court below upon the issue as to the refusal by the plaintiff to purchase. Having fully heard the learned Vakil for the appellant, we consider that we are bound to accept the finding of the lower Appellate Court that the plaintiff did not refuse to purchase. The Court has given its reasons for coming to this conclusion. The next point urged was that the re-sale to the vendor was a complete defence to the suit, notwithstanding that the re-sale did not take place until after the present suit was instituted. This is contrary to the rulings in Narain Singh v. Parbat Singh ; A.W.N. (1901) 66 and Liakat Husain v. Rashid-ud-din 3 A.L.J. 794; A.W.N. (1906) 313 : 29 A. 125. In those cases the re-sale had been made to a co-sharer. In the present case it does not appear that the original vendor was a co-sharer at the time of the re-sale. A perusal of the sale-deed rather suggests the contrary. It seems as if the vendor, Angnu, sold all that he was possessed of. In any event if the defendant relied upon the re-sale to a co-sharer, the burden lay upon him of proving the fact. We dismiss the appeal with costs.