JUDGMENT Harnam Singh, J.
1. In order to appreciate the point of law arising, in Regular Second Appeal No. 807 of 1947 the facts of the case may be set out in some detail.
2. On 25-7-1942, Paras Ram, defendant No. 3, sold one half of the land comprised in Khewat No. 102 situate in village Mihra, Tehsil Thanesar, district Kamal, to Arjan Singh and Sahib Ditta defendants Nos. 1 and 2 for Rs. 2,600/-. That sale was attested by the Revenue Officer in the register of mutations on 14-2-1944. On 25-7-1942, Raj Ram, was an owner of the estate and the vendees became owners of the estate on 2-3-1944. On the 22-3-1944, Paras Ram defendant No. 3 sold one half of the land comprised in khewat No. 102 to Raja, Eabu, Munshi, Mangal, Des Raj , and Ram Singh, sons of Kalu Ram, for Rs. 8,501/-. By this sale, Raja Ram became a co-sharer in khewat No. 102.
3. On 22-8-1944, Raja Ram instituted Civil Suit No. 195 of 1944 claiming a right of pre-emption superior to that of the vendees on two grounds, namely, (I) that on 25-7-1942, he was an owner of the estate while the vendees became owners of the estate on 2-3-1944, and (2) that he was a co-sharer in khewat No. 102 while the vendees were not.
4. On 1-10-1945, counsel for Raja Ram conceded that the plaintiff could not maintain the suit to pre-empt the sale on account of his being owner of the estate but maintained the plaintiff’s claim on the ground of his having right of pre-emption superior to that of the vendees by reason of his being a co-sharer in khewat No. 102. In other words, Raja Ram sought to enforce the right of preemption denned in section 15(b), fourthly read with’ section 4 of the Punjab Pre-emption Act, 1913, hereinafter referred to as the Act.
5. As stated above, Raja Ham became a co-sharer in the land sold on 22-3-1944, whereas the sale which was sought to be preempted was made on 25-7-1942. In this connection certified copies of mutations, Exhibits P. 2 and P. 3, may be seen.
6. Defendants Nos. 1 and 2 resisted the suit pleading ‘inter alia’ that on 25-3-1942, Raja Ram plaintiff did not possess the right of pre-emption defined in Section 15(b) ‘fourthly’ read with Section 4 of the Act.
7. In deciding civil suit No. 195 of 1944 the ‘Court of first instance found that the plaintiff possessed the right of pre-emption that he sought to enforce, but finding that the suit was not within time dismissed the suit leaving the parties to bear their own costs.
8. From the decree passed in civil suit No. 195 of 1944 Raja Ram plaintiff appealed under Section 96, Civil P. C.
9. In deciding civil appeal No. 302 of 1945 the District Judge found the suit to be within time but maintained the decree under appeal on the finding that on 25-7-1942, Raja Ram plaintiff did not possess the right of preemption that he sought to enforce in civil suit No. 195 of 1944. In the result, the District Judge dismissed the appeal with costs.
10. In these circumstances, Raja Ram plaintiff has come up in further appeal to this Court under Section 100, Civil P. C.
11. Now, Regular Second Appeal No. 807 of 1947 was originally laid for disposal before Achhru Ram J. In arguments, counsel for the appellant urged that it is not necessary that the superiority of the right of pre-emption on the date of the institution of the suit and on the date of the decree of the Court of first instance should be on the basis of the statutory qualification which gave him a superior right on the date of the sale. Finding that the point raised was of considerable importance, Achhru Ram J., has referred the case for decision to a Division Bench pf this Court.
12. Now, in order to enforce the right of pre-emption a plaintiff has to show that he possessed the right of pre-emption sought to be enforced on three dates, namely (1) the date of sale, (2) the date of institution of the suit, and (3) the date of the first Court’s decree. On this point, — ‘Het Ram v. Dal Chand’, 14 Lah 421, may be seen.
13. In the present case, the right of .preemption which is sought to be enforced was not possessed by the plaintiff on 25-7-1942, when the sale was made by Paras Ram defendant No. 3 to Arjan Singh and Sahib Ditta defendants Nos. 1 and 2. Clearly, the present suit does not satisfy the conditions laid down in — ‘Het Ram v. Dal Chand’, 14 Lah 421.
14. Mr. Shamair Chand appearing for Raja Ram plaintiff argues that on, 25-7-1942 the plaintiff possessed the right of pre-emption on the ground that he was an owner of the estate, while the vendees were not owners of the estate on that date. In my judgment, Raja Ram plaintiff cannot succeed by showing that on the date of the sale he was an owner of the estate while the vendees were not and that he was a co-sharer in ‘khewat’ No. 102 while the vendees were not on the date of the institution of the suit and the date of the decree of the Court of first instance. The right of pre-emption which is sought to be enforced is the right of pre-emption defined in Section 15(b) ‘fourthly’ read with Section 4 of the Act and the plaintiff cannot succeed in the suit unless he proves that he possessed that right on the date of the sale.
15. Mr. Shamair Chand then argues that as a vendee is allowed to improve his status subsequent to the sale to defeat a pre-emptor, there is no reason to refuse that indulgence to a pre-emptor. As stated above, in order to maintain his suit for pre-emption the plaintiff must possess the right of preemption on the date of the sale, the date of the institution of the suit, & the date of the first Court’s decree. That being so, if the vendee possesses a status equal to that of the plaintiff on the date of the institution of the suit or on the date of the decree of the Court of first instance, the plaintiff must fail. On the other hand, a pre-emptor must show that the superior right to pre-empt was possessed by him on the three dates stated above. That this is so follows from the very definition of the right of preemption. On 25-7-1942,’ Raja Ram did not possess the right of pre-emption which he seeks to enforce in civil suit No. 195 of 1944. Clearly, Raja Ram plaintiff cannot be allowed to enforce a right of pre-emption which he did not possess on the date of the sale. For an authority on this point reference may be made to — ‘Faiz Mahommad v. Fajar All Khan’, 25 Lah 473. In that case Abdul Rehman J., (Harries C. J. and Teja Singh J. concurring) said:
“But as a vendee has been allowed to improve his position subsequent to the sale to defeat a pre-emptor, there is no reason to grant the same indulgence to a preremptor, particularly when the scheme of the Pre-emption Act is opposed to it. Moreover, it must be remembered that the vendee is on the defensive and is entitled to arm himself with a shield in order to protect his right which had accrued to him on the basis of his contract. A pre-emptor is on the other hand an aggressor. It is he who wishes to dislocate the vendee and it is he, therefore, who must show that the superior right to pre-empt which he had at the date of the sale continued to remain superior at all relevant times. If he fails to show, that, he must fail in his suit.”
16. Finding as I do, that the pre-emptor did not possess the right of pre-emption defined in Section 15 (b) ‘fourthly’ read with Section 4 of the Act on 25-7-1942, I maintain the judgment and decree passed in civil appeal No. 302 of 1945 on the 9-1-1947, and dismiss Regular Second Appeal No. 807 of 1947.
17. Having regard to the circumstances of the case, I would leave the parties to bear their own costs in this Court.
Khosla, J.
18. I agree.