The preparation of the instrument of partition is necessary to make a partition legally effective, and the right to take possession arises only on the basis of the instrument of partition.

Hemant Gupta, J.

1. The plaintiff pre-emptor is in second appeal aggrieved against the judgment and decree passed by the first Appellate Court whereby his suit for possession by way of pre-emption of the land measuring 16 kanals 11 marlas being a co-sharer and thus have a preferential right to pre-empt the sale was dismissed in appeal by the first Appellate Court.

2. The only question which has been raised before the courts below is whether the plaintiff was a co-sharer on the date of decree passed by the learned Trial Court. According to the defendant-vendee, the land was partitioned and thus the plaintiff ceased to be co-sharer on the date of the decree of the trial Court, whereas as per the plaintiff the land was not partitioned as no instrument or partition has been drawn so far.

3. The learned trial Court found that the instrument of partition has not been drawn which is not a formality. Reliance was placed upon a Single. Bench judgment of Himachal Pradesh High Court reported as Sh. Khem Dutt V/s. Pakila and Ors., 1982 P.L.J. 391 to hold that the instrument of partition has not been prepared so far and consequently the partition proceedings have not been finalised and thus the plaintiff continues to be a co-sharer and that he has a superior right of pre-emption. However, the learned first Appellate Court accepted the appeal filed by the defendant vendee on the ground that the instrument of partition has been prepared and delivered to the parties on 16.2.1987. The possession was delivered as per the copy of report Roznamcha Vakiyati dated 3.4.1987 and thus the right of pre-emption of a co-sharer stands forfeited.

4. The learned counsel for the appellant has vehemently argued that there is nothing on record that the instrument of partition was prepared in February, 1987. It is also argued that even if it is prepared in February, 1987, it will not defeat the right of the plaintiff as he continues to be co-sharer on all the three material dates i.e. on the date of sale, on the date of filing of suit and on the date of decree passed by the Trial Court. Therefore, any loss of character as a co-sharer after passing of the decree by the learned Trial Court will not defeat the right of pre-emption.

5. In view of above arguments of appellant the following substantial questions of law arise for consideration in this appeal.

Whether the suit of the plaintiff pre-emptor can be dismissed in an appeal on the basis of instrument of partition prepared after the decree passed by the Trial Court.

6. The respondent vendee sought partition of the suit land which was allowed by the Assistant Collector, IInd Grade, Ballabgarh on 21.10.1986 wherein it was ordered that the revenue record in pursuance of the above partition be effected after Kharif, 1986 and that the instrument of partition be prepared after limitation for filing of appeal expires. Ex.P7 is the memorandum of appeal against the said order passed by the Assistant Collector II Grade and Ex.P6 is the order dated 24.11.1986 wherein the order passed by the Assistant Collector was stayed. The decree was passed by the learned Trial Court on 17.1.1987. There is nothing on record to show that the appeal was decided before the decree was passed by the trial Court or that the instrument of partition was prepared before the said date with the effective date of partition prior to the decree passed by the trial Court.

7. The procedure for partition is contained in Chapter 9 of the Punjab Land Revenue Act, 1887. Section 121 of the said Act contemplates preparation of an instrument of partition after the partition is completed. The date on which the partition is to take effect is also to be recorded therein. Once instrument of partition is prepared, any owner of tenant to whom any land or portion of a tenancy as the case may be is allotted in proceedings for partition shall be entitled to possession thereof as against other parties to the proceedings.

Sections 121 and 122 of the Land Reven