1. ' Undisputed and otherwise proved facts in second appeal arising from a pre-emption suit are few and simple but involve a complex question of law, hereto not covered by any binding authority. At least, so the learned counsel state.
2. ' By Mutation 1496, sanctioned on 25-1-1964, one Muhammad Fazil sold 21 kanals, 9 marlas of land at Chak Pirana in Tehsil Kharian to Muhammad Yaqoob appellant for a consideration of Rs, 4,500.
3. Fazal Dad alongwith Muhammad Ashraf claimed pre-emption in respect of this sale and brought a pre-emption suit against the appellant on 25-1-1965. Pre-emptors asserted their superior qualifications on the grounds of being owners of the estate, and owning of land in the patti. Before the institution of pre-emption suit, vendee had also purchased some land, in the revenue estate, in joint ownership with his father-in-law, on 27-3-1964: This acquisition brought him at par with the pre-emptors. In this state of facts, appellant resisted the suit filed against him and repudiated the preference asserted by his opponents. On 24-3-1965, appellant sold his share of the land purchased by him on 27-3-1964, and, bought another piece of land in the same revenue estate. In the result of a contested trial, the learned trial Court found that since at the time of institution of the pre-emption suit, rights of the parties were at par, pre-emptors could not succeed, and dismissed their suit on 9-2-1966. In appeal filed by them, learned District Judge differed with the trial Court, and held that in the act of subsequent sale of the land which had improved the status of the vendee prior to institution of pre-emption suit filed against him, the vendee could not successfully resist and defeat pre-emption against him. On the above premises, appeal was allowed on 6-6- 1966, and the pre-emption suit decreed to the pre-emptors subject to payment of a specified sum of money, before a particular date. Aggrieved of the decree given in first appeal, appellant came up in second appeal to this Court for assailing the view of learned District Judge. His appeal was admitted to hearing on 21-7-1966.
4. ' Upon true application of legal principles to the existing facts, second appeal must succeed because the view of learned District Judge on them was untenable and could not be upheld. Clear preference is quintessence of preemption. In order to succeed, a pre-emptor is obliged to maintain his preference on three crucial stages, viz. Date of sale, date of institution of pre-emption suit, and, finally, the date of the decree by the trial Court. Loss of preference on or between any of the above three stages must prove fatal for a successful claim of pre-emption. Case, of a vendee who is on defence is different from that of a preemptor. In competition to him, vendee's right is to be judged at the time of the sale sought to be pre-empted. In case, the vendee's qualification was at par or superior to the pre-emptor, pre-emption against him must fail. While it is essential for a pre- emptor to retain his superior qualifications as an unbroken chain till the final stage is reached in the pre-emption suit, it is not so necessary for the vendee to maintain them after the initial sale. No rule of law required him to do so. At least, none has been pointed out. On the contrary, section 21-A gave permission to the vendee to improve his status till the institution of pre-emption suit and thereafter improvement was permissible only either through inheritance or succession. It was not denied that by purchasing a piece of land before institution of pre-emption suit, the appellant had become an owner of the estate and enjoyed equal qualification with the pre-emptors. At that stage of time, it is common ground that pre-emptors were bereft of any superiority over the appellant. Important question requiring attention would be, whether the equality once gained in the result of improvement in status, was subsequently lost in the sale of land which gave rise to it.
5. In an earlier portion of the judgment, I have referred to a principle that it was not obligatory for a vendee to retain his qualifications after the sale, whereas it was so for a pre-emptor. If at the time of sale, a vendee is possessed of a qualification either equal or superior, its subsequent loss was immaterial to his rights. Except for a contingency contemplated in section 28-A of Punjab Pre- emption Act, similar consideration must attract to a case of improvement in status of the vendee before the institution of the pre-emption suit because neither any express section in the Pre- emption Act nor any principle of pre-emption law justified a different treatment of the situations visualized above. No direct authority on the point was cited by either side. It is stated that despite search, they have not been able to locate any. However, facts in Muhammad Nawaz Khan and another v. Mussammat Bobo Sahib reported as 44 P.R. 1903 closely resemble the facts of the instant case and the decision rendered in the case is clearly helpful. Relevant observations are present at page 156 of the reported judgment. It runs:-- "It is also urged that defendant having at all events immediately parted with his own house ought not to be allowed to retain the one in suit on the strength of his ownership of that house. But, he is defendant, not plaintiff, and the question of priority must be decide with reference to the circumstances existing at the time of his purchase and not at any later period, and if he was entitled to purchase at the time of sale he did not forfeit his right by parting with his own house afterwards. It would have been different had the plaintiff been in his position?
6. ' Rule of law laid down in above decision was not differed with in case of Sardar Darchan Khan and others v. Sohaura Mal 3 P.L.R.
7. 1907. In fairness, it may be observed that both these cases were referred to by Ch. Arshad Mahmood, learned counsel for the appellant. Learned counsel for the respondents, except for an oral address, did not refer to any authority in which a contrary view prevailed. Having regard to this state of law, it is clear that in result of subsequent sale, appellant did not forfeit his equality gained by purchasing the land before the institution of pre-emption suit filed against him. Upon this view, I find it difficult to uphold the view of learned District Judge expressed in the impugned judgment.
8. ' For the foregoing reasons, appeal succeeds. Impugned judgment and decree passed by learned District Judge are set aside, and those of the trial Court restored by leaving the parties to bear their own costs of the litigation.
9. Records be returned.