The right of pre-emption is lost if the land is partitioned during the pendency of the appeal.

M.S.Liberhan, J.

1. The short question referred to the Division Bench for decision is, whether the events subsequent to the passing of the decree for pre-emption by the trial Court, can be taken note of by the appellant Authority while hearing the appeal. The said question has arisen in a suit for preemption under the following admitted facts:

2. The plaintiff, hereinafter referred to as the respondents by way of pre-emption, claimed a superior right to pre-empt the sale, on the ground of his being co-sharer in the land sold to the vendee-defendant, hereinafter referred to as the appellant. Though oral partition was set up by way of defence yet finally it emerged that the mutation of partition was effected during the pendency of the appeal. It was observed that the partition was finally affirmed on 21.4.1990 i.e. during the pendency of the appeal.

3. Pre-emption suit for possession was decreed by the trial Court. The lower Appellate Court affirmed the decree of pre-emption, inter alia holding that the partition effected outside the Court can become valid only if it is brought to the notice of the revenue, authorities and same is sanctioned by the said authorities. In continuity to above finding the Appellate Court observed, the alleged oral partition was not proved as the same was not got sanctioned from the revenue authorities till day. Consequently, decree for pre-emption was affirmed.

4. In Regular Second Appeal learned Single Judge, finding that the observations made in Santokh Singh v. Lajja Ram,1 (1986-2)90 P.L.R. 406, to the effect that the subsequent events cannot be lost sight by the Court while determining the rights of the parties i.e. if the land was partitioned during the pendency of the appeal, the co-sharer lost his right of pre-emption, were doubted in Lakhwinder Singh v. Balvinder Singh,2 1987 P.L.J. 505, wherein it was observed that pre-emptor has to retain his right of pre-emption on the date of sale, institution of the suit and the decree of the trial Court and not beyond that, referred the matter to a Division Bench for adjudication.

5. We have heard the learned counsel for the parties at length. No substantial arguments have been addressed at the bar as to when the partition came into being, when it was acted upon or when it was finally sanctioned by the revenue authorities. In view of the finding returned by the District Judge, neither the private partition was reported to the revenue authorities, nor it was given effect to. Irrespective of the fact observed above putting the case of the vendee at the highest pedestal the partition was sanctioned during the pendency of the appeal. Should notice of such a partition be taken note of ?, the question which we have been called upon to answer.

6. Under the Punjab Pre-emption Act and Customary Pre-emption Law, historically and precedently by numerous Judicial pronouncements by Honble the Supreme Court and this Court as well entrenched principle of law established is to the effect, that in a suit for possession by pre-emption, before the pre-emptor could succeed, he has to have a right of pre-emption on the date of sale, institution of the suit and the decree.

7. In Bhikha Ram v. Ram Sarup,3 (1992-1)101 P.L.R. 49 (S.C.) that right of pre-emption of co-sharer was upheld observing:

"On the consideration that if an outsider is introduced as a co-sharer in a property it will make common management extremely difficult and destroy the benefits of ownership in common".

For this purpose reference had been made to Babu Ram v. Baij Nath,4 A.I.R. 1962 S.C. 1476. It was further observed that the whole purpose of the right of pre-emption as co-sharer in property was to make the common management convenient.

8. In our considered view on partition the very object for which the right of pre-emption is granted to the co-sharer becomes extinct and the concept of preemption would loose its very object and impact if the right of pre-empt is allowed to continue even after pa