JUDGMENT : Stanley, J.:— The suit out of which this appeal has arisen, was brought by the plaintiffs for redemption of a usufructuary mortgage. They sued as owners of the equity of redemption which they had purchased from two of the representatives of the mortgagers. The claim was met by a defence on the part of one of the defendants, Ilahi Khan, to the effect that he was a co-sharer in the village, and as such, entitled to pre-empt the sale which was carried out in favour of the plaintiffs if that sale was a valid sale, and that he was willing to pre-empt it, and that therefore the suit could not be maintained. This contention found favour with Both the lower Courts. They considered the relationships of the parties and came to the conclusion that Ilahi Khan was entitled to pre-empt the sale, and this being so, a somewhat extraordinary decree was passed to the effect that Ilahi Khan should have an opportunity of pre-empting the sale carried out in favour of the plaintiffs, but in default of his purchasing the property and paying the purchase money within a time named, the plaintiffs should he entitled to redeem the property. Now this is a very unusual and complicated form of decree, and one which is certainly not to be encouraged even if it be valid. 2. We think in this instance it is entirely wrong. In the case of Ajudhia Baksh Singh v. Arab Ali Khan, [1885] I.L.R., 7 All., 892, it was decided by a Bench consisting of PETHERAM, C.J., and TYRRELL; J., that a co-sharer, who is in possession, cannot plead the existence of a right of pre-emption in defence to a suit for possession by the purchaser of the rights and interests of another co-sharer. The defence of a right of pre-emption is not a valid defence in a suit to recover possession of property. This was so held in the recent case of Ram Chand v. Durga Prasad, [1903] I.L.R., 26 All, 61, F.B., overruling the decision in Pulandar Singh v. Jwala Singh, [1898] I.L.R., 20 All., 561. The defence of a right of pre-emption is not a valid defence in a suit to recover possession of property. This was so held in the recent case of Ram Chand v. Durga Prasad, [1903] I.L.R., 26 All, 61, F.B., overruling the decision in Pulandar Singh v. Jwala Singh, [1898] I.L.R., 20 All., 561. The case sought to be set up there was that a person who had a right to pre-empt and who did not in a suit for recovery of possession of property set up the right as a defence to the suit, was not precluded afterwards from setting up a claim for pre-emption. The courts below have erred in this matter and have in consequence decided this case upon a matter which ought not to have been entertained by them. We therefore allow the appeal, set aside the decrees of the lower courts and remand the suit under the provisions of section 562 of the Code of Civil Procedure to the court of first instance through the lower appellate court, with direction that it be replaced in its former number on the file of pending cases and be tried upon the merits. Costs here and hitherto will abide the event.