Judgement

P. JAGANMOHAN REDDY, J.:- This appeal is by certificate against the judgment of the Punjab High Court dismissing the pre-emption suit of the appellant by reversing the concurrent judgment of the trial court and the 1st Appellate court.

2. The plaintiffs alleged that they had purchased on 10-5-55 the share of Khotu and Chandu Ram in Khewat 2, Khata 26 to 44 and 6 bigas and 7 biswas in Khewat No. 3 Khatas 49 to 54 comprising in all an area of 213 bigas and 14 biswas. On 16-4-57 respondents 1 to 6 purchased 926 bighas in Khewats nos. 2 and 3 for Rs. 43,600/-. Nearly a year thereafter the deed of sale was registered on 19-3-68. The plaintiffs filed a pre-emption suit against respondents 1-6 on the ground that they were Biswadars and co-shares in the land in dispute. For the purpose of this appeal, it is not necessary to consider their claim of Biswadari rights because the claim on which the plaintiffs rely mainly is of their being co-shares along with the vendors in the lands sold to respondents 1-6. The suit was decreed on 4-1-60 and on appeal the District Court confirmed the decree on 6-3-61. The High Court, however, in second appeal reversed that decree on the ground that the appellants had not established that they had on the date of the decree any lands in which they were co-shares with the vendors in the land sold to respondents 1-6. At this stage, we may mention that before the decree was passed by the trial court, the appellants had sold their co-shares right in Khewat No. 2 Khatas Nos. 26-44 and Khewat 3 Khatas 49-54. It was their case that after the sale this deal had co-ownership rights in 6 bighas and 7 biswas and consequently they were entitled to a decree for pre-emption. The trial court on oral evidence held that 6 bighas and 7 biswas that were said to have been retained by the appellants pertained to the co-ownership in the suit lands and consequently they had the right to pre-empt. As we said earlier, the first appellate court also tool the same view. The main question is whether the appellants had superior rights of pre-emption. What the appellants have to establish under Section 15 (b) forthly of the Punjab Pre-emption Act is that the sale was out of joint land or property which had not been made by the co-sharers jointly and that they were the other co-sharers who had not joined in the sale.It is well settled that this right had to subsist on the plaintiffs not only at the time when the sale sought to be pre-empted was effective but up to the date of the decree. Though it was not disputed that the plaintiffs were co-shares in the aforesaid khatas of khewats no.s 2 and 3, what was contested was that after the transfer of practically the entire area on that date the plaintiffs ceased to be co-sharers who could pre-empt the sale relating to 926 bigas in khewats 2 and 3 because it was nowhere proved in which khata or khewat the area had been left and in what manner the plaintiffs remained co-shares so far as the suit lands were concerned. The High Court pointed out that the appellants had not produces the sale deed dated 19-5-69 (59?) by and under which they had sold their co-ownership rights in khewat no. 2 khatas 26-44 and khewat no. 3 khatas 49-54.

3. In view of the omission to file the most important document, it was not possible to ascertain whether 6 bighas and 7 biswas which were said to have been left to them did in fact pertain to khewat 2, khatas 26-44, and khewat 3, khatas 49-54. The omission to file a document which was in the power and possession of the appellants entitled the High Court to draw an adverse inference against the appellants and in that view they allowed the appeal and dismissed the suit. Some argument seems to have been advanced in the High Court based on the definition of holdings in Section 3 (3) as meaning a share or portion of an estate held by one owner or jointly by two or more land owners. On this basis it was contended that the appellants being owners of the land which he