JUDGMENT 1. This appeal arises out of a suit for pre-emption brought by the plaintiff-appellant in the court of the Munsif of Sahaswan in the Budaun District. Gopi and Mt. Dipa, it appears, executed a deed of sale of certain landed property on the 16th January, 1920 in favour of one Dip Chand. On the 19th of November 1920 Her Keshi the plaintiff-appellant before us filed his suit for the recovery of the said property on the allegation that under a custom of preemption which obtained in the village where the property is situate, he being the co-sharer of the vendors was entitled to purchase the property in preference to Dip Chand who was a stranger. The claim was brought against the vendors and the vendee. One Mewa Ram was also impleaded as a defendant on the allegation that there was a fictitious mortgage in his favour in respect of the property in suit. On the 3rd December 1920 before the case came to trial Dip Chand the vendee sold the property in suit to Mewa Ram who is also a co-sharer in the village and of the same status as Her Keshi the pre-emptor. The custom of pre-emption stated in the plaint was denied by the contesting defendants, and in addition Mewa Ram pleaded that he being a co-sharer in the village and a transfer of the disputed property having been made in his favour prior to the trial of the case, the suit of Her Keshi the pre-emptor must fail. The Court of first instance rejected the pleas in defence holding that the right of pre-emption arose on the execution of the sale deed of the 16th of January 1920 and no subsequent transaction even in favour of a co-sharer of equal degree with the pre-emptor could defeat the letter's right. On appeal by Mewa Ram the learned Judge of the lower appellate Court disagreed with the first Court. He held that on the case law of this Court the defence of Mewa Ram was a good and valid defence and defeated the claim of Her Keshi. The case Behari Lal v. Mohan Singh (1920) 42 All. 268 : 2 U. P. L. R. (All.) 48 : 18 A. L. J. 220 : 55 I. C. 71, was referred to by the learned judge as authority in favour of his view. The case Behari Lal v. Mohan Singh (1920) 42 All. 268 : 2 U. P. L. R. (All.) 48 : 18 A. L. J. 220 : 55 I. C. 71, was referred to by the learned judge as authority in favour of his view. The claim of Her Keshi was accordingly dismissed. 2. In his appeal before this Court Her Keshi contends that his right of preferential purchase arose on the transfer in favour of Dip Chand on the 16th of January 1920 and any subsequent transfer by the vendee Dip Chand would not affect his (Her Keshi's) right. In support of this view the learned counsel for the pre-emptor has relied upon some of the older cases of this Court. We think we are bound to follow the case of Bihari Lal mentioned above. That case was also followed by this Bench in the case of Shift Lal v. Bind Singh and others disposed of on the 26th of January of this year. The claim of Her Keshi therefore fails. It is however contended that there is some difference in the amount of the property conveyed by the two sale deeds of the 16th January 1920 and the 3rd December 1920. The latter sale deed refers to property less than that conveyed by the deed of 16th January 1920. The claim of Her Keshi therefore ought to prevail in respect of that portion of the property which is not included in the sale of the 3rd December 1920. No such plea seems to have been taken in the Court of first instance or in the lower appellate Court or in the memorandum of appeal to this Court. The learned Counsel for the respondents argues that he is not in a position to meet this objection at this stage, not having his client or the latter's agent with him and having no information on the subject. As the objection was not taken in the memorandum of appeal before this Court, we need not consider it. The result is that the appeal fails and is dismissed with costs including fees in this Court on the higher scale, if any.