The central legal point established in the judgment is that a co-sharer has a superior right of pre-emption as established by the Full Bench decision, and a subsequent partition does not affect the right of pre-emption if the pre-emptor had the right on the date of sale, on the date of suit, and up to the date of the decree of the trial Court.

G.C.Mital, J.

1. On 3.3. 1979 Bhai Ram sold Killa No. 32/18 measuring 8 Kanals. The sale was out of Khewat No. 95 and Khatauni Nos. 106 to 112 for Rs. 12,000/- in favour of Jagdish Singh and other appellants. On 4.4.1980, Dalip Singh filed a suit for pre-emption as a co-sharer. The trial Court by judgment and decree dated 3.3.1981 dismissed the suit in view of Mst. Gurnam Kaur v. Ralla Ram and others, 1970 P.L.J. 687, and Bakshish Singh v. Gurcharan Singh and others, 1972 P.L.J. 672, after recording a finding that the sale was with regard to a specific killa number and not a share, hence was not pre- emptible. The pre-emptor went up in appeal. While the case was pending before the lower Appellate Court, a Full Bench in Bhartu v. Ram Saroop, 1981 P.L.J. 204, ruled that even if a co -sharer sells a particular khasra number instead of selling his share in that khasra number or his share in the total holding, yet in law, the sale would be treated as a share and can be pre- empted by the other co-sharer. The two decisions relied upon by the trial court were specifically over-ruled. Consequently, it held that the plaintiff was a co-sharer with the vendor and had the right of pre-emption. However, during the pendency of the appeal, the defendant sought amendment of his written statement to plead that the joint land had been partitioned during the pendency of the suit,with the result the vendor and the pre-emptor ceased to be co-sharers and as such the pre-emptor ceased to have the right of pre- emption as a co-share and the appeal be dismissed on this score. The amendment was allowed and two additional issues Nos. 5-A and 5-B were framed as follows :-

(5A) Whether the land had been partitioned as alleged? If so, its effect?

(5B) If issue No. 5A is proved whether the plaintiff-appellant was a minor and such partition had no effect on the rights of the plaintiffs?

2. Both the parties were allowed to lead evidence on these issues. Both the issues were decided in favour of the pre-emptor and it was held that neither there was partition and if at all there was a partition, it was not binding on the minor plaintiff and as such did not affect his rights, with the result the appeal was allowed and the pre-emption suit was decreed as prayed for. This is vendees second appeal.

3. After hearing the learned counsel for the parties, I am of the view that the plaintiff-respondent had superior right of pre-emption as a co-sharer in view of Full Bench decision of this Court in Bhartus case (supra). The decision of the Full Bench was sought to be challenged before me. Sitting singly, I am bound by the Full Bench besides the fact that I was also a member of the Full Bench.

4. Coming to the other point, which was raised for the first time before the lower Appellate Court, I find no merit in that point either. The case of the vendees is that an order of partition was made by the Collector under the Land Revenue Act on 8.12.1981. Assuming for the sake of arguments, that there was partition made by the aforesaid order which was binding on the minor- plaintiff, yet I am of the view that the right of the plaintiff to seek pre- emption is not taken away by such order of partition. It is well established by now that a pre-emptor has to show that he had a right of pre-emption on the date of sale, as also on the suit, which right should continue up to the date of decree of the trial Court and not beyond that date. The decree of the trial Court is dated 3.3.1981. Therefore, if the plaintiff had a right of pre-emption till 3.3.1981, the partition made subsequent thereto, will not affect his right. Admittedly, according to the vendees own case, the partition was made on 8.12.1981. Accordingly, it is established that the pre-emptor had a right of pre-emption on the date of sale, on the date of suit and also up to the date of decree of the trial Court. Therefore, the order of partition obtained by the vendor on 8-12-1981, is of no consequence and would not s