1. This is a defendant's appeal arising out of a suit for preemption. The main plea taken on behalf of the defendant was that the plaintiff had no preference over him. The Court of first instance dismissed the suit on the 24th July 1920. On appeal the lower Appellate Court was of opinion that under the custom recorded in the wajib-ul-urz the plaintiff had a right of preferences against the defendant-vendee though the latter was a co-sharer in the same thok. The decree of the First Court was accordingly set aside and the suit decreed. A second appeal was preferred to this Court on the 28th July 1921 and one of the grounds raised in the memorandum of appeal was that, inasmuch as the plaintiff-respondent had ceased to be a co-sharer at the time of the lower Appellate Court's decree, his suit should have been dismissed.
2. An affidavit was filed in support of the allegation implied in that ground and time was given to the opposite party to file a counter-affidavit if necessary. No such affidavit was filed.
3. We may therefore, take it that it is the appellant's case that on the 20th April 1921 the share of the plaintiff pre-emptor, on the strength of which he had instituted the suit was sold at auction and purchased by a third party. This sale was subsequently confirmed and a sale certificate of a later date was issued, a certified copy of which is produced along with the affidavit. We may, therefore, take it that the plaintiff-respondent ceased to be a co-sharer on the 20th April 1921. This however, was a date subsequent to the date of the First Court's decree. But we would like to note that, although the auction-purchase had taken place before the passing of the decree of the lower Appellate Court, the fact was never brought to the notice of that Court.
4. It is well-settled law that a plaintiff pre-emptor in order to be able to maintain a suit for pre-emption must establish his right to pre-empt on three important dates. He must have a right of preemption at the time when the sale took place otherwise he would have no cause of action at all. He must also have the same right at the time when the suit is brought or else he would have no locus standi to sue. A possible view to take might have been that nothing which happens after the institution of a suit can alter the position of the parties. But it has been held in a number of cases by this Court that it is incumbent on the plaintiff to prove that his right to preempt continues up to the date when the decree ought to have been passed in his favour, namely the date on which the case was disposed of by the First Court. It matters little whether the Court of first, instance did actually dismiss or decree his suit. The date of that Court's decree is the date on which, if the plaintiffs' contention is correct, the decree ought to have been passed in his favour. This principle was the basis of the decision in the following cases.
5. Ram Gopal v. Piari Lal 21 A. 441 : A.W.N. (1899) 163 : 9 Ind. Dec. (N.S.) 988, Bhagwan Das v. Mahan Lal 25 A. 421 : A.W.N. (1903) 83, Rohan Singh v. Bhao Lal 3 Ind. Cas. 42 : 31 A. 530 : 6 A.L.J : 699 and of Skankar Lal v. Kirari Mal 77 Ind. Cas. 144 : (1924) A.I.R. (A.) 81 recently decided by this Bench. The last crucial date in such cases must, therefore be taken to be the date of the First. Court's decree. If subsequent events ware allowed to alter the form of the decree it would lead to much confusion. It is impossible to hold that having regard to the position of the parties, as it stood on the date of the First Court's decree, any other decree could have been passed on that date. Further more, an Appellate Court cannot take into account these subsequent events without admitting fresh evidence in appeal, which may not always be permissible.
6. We are, therefore, of opinion that the subsequent loss of the share by the plaintiff can in no way affect the right he possessed at the time when the decree in his favour ought to have been passed by the First Court.
7. The other grounds taken in the memorandum of appeal have not been seriously pressed. The result, therefore, is that the appeal fails and is hereby dismissed with costs including in the Court fees on the higher scale.
Comments