' The facts leading to this second appeal by the vendee defendants in a pre-emption suit are as follows.
2. The land in suit measures 7 Kanals 19 Marlas; it was 5/16 share of land measuring 25 Kanals 9 Marlas comprising Khewat No, 48 according to the Jamabandi for the year 1960-61. The vendors Mst. Jantay and Mst. Begum sold it by means of a mutation attested on 6-8-1964. The plaintiff Ismail, now respondent, instituted this suit to pre-empt the sale on 29-7-1965 on two grounds; (i) that he was a co-sharer in the land in suit and (ii) that he was a collateral of the vendors. It is common ground between the parties that before the institution of the suit there had been consolidation of holdings under the Consolidation of Holdings Ordinance, 1960, with the result that a new land was allotted in lieu of the land subject-matter of the sale mutation. It was found that the plaintiff was a collateral of Mst. Begum vendor but was not a collateral of the other vendor Mst.
Jantay and that the transaction in question was indivisible. It was found also that the plaintiff was not a co-owner in the Khata of the new land allotted to the vendee defendants in lieu of the land subject-matter of the sale mutation. The learned Civil Judge dismissed the suit by his judgment dated 18-2-1969 on the ground that with the consolidation of holdings, the plaintiff had ceased to be a co-owner of the land in suit. On the plaintiffs appeal, however, the learned Additional District Judge decreed the suit by his judgment dated 7-4-1970 in respect of the land measuring 7 Kanals ,14 Marlas which according to him had been given to the vendee defendants in lieu of the old land measuring 7 Kanals 19 Marlas. The learned Additional District Judge failed to understand "how the Consolidation proceedings could deprive the appellant of his right to purchase the land in preference to the vendees". He was prepared to concede that the plaintiff "should have established the existence of this right, not only at the time of the sale but also at the time of the institution of the suit, to entitle himself to the passage of a decree for possession by pre-emption", but the real question in his opinion was "whether the consolidation of holdings took away the right which he enjoyed at the time of the sale, because of the circumstance of being a co-sharer in the same Khewat with respondent Nor. In the view of the learned Additional District Judge for purposes of a pre-emption suit, the plaintiff "will still be deemed to have been a co-sharer in the same Khewat alongwith Mst. Jantay even at the time of the institution of the suit irrespective of consolidation of holdings and the fact that the some new land had been given to the vendees in a different Khewat or plot". For his view the learned Additional District Judge derived support from Qaim Din v. Said Ahmad and another PLD 1967 Lahore 1171.
3. It is well settled that in order to succeed the plaintiff must retain his preferential right of pre- emption at three stages, namely, at the date of the sale, at the date of the suit and at the date of the decree. Malhi Khan v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others PLD 1991 Supreme Court 824. Also see Qaim Din v. Said Ahmad and another (PLD 1967 Lahore 1171 at page 1185). Here, the plaintiffs claim to preemption was founded upon his being a co-sharer. As observed above, the consolidation of holdings was complete on 31-12-1964, that is, before the institution of this suit. Admittedly, in the new Khata, the plaintiff was not an owner and had, therefore, as a result of the consolidation of holdings lost the preferential right of pre-emption. In other words although he was a co sharer of the land subject-matter of the sale mutation at the date of the sale yet he had ceased to be so at the date of the suit: Learned counsel for the appellants cited a case reported as 32 IC 120 in which, as a result of partition of holdings before the institution of the suit, the plaintiff had ceased to be a co-owner of the land in suit and his suit was dismissed and argued that the same principle applies to this case. Learned counsel for the plaintiff on the other hand supported the reasoning of the learned Additional District Judge; he was of the view that the learned Additional District Judge had rightly relied upon Qaim Din case.
4. The facts of Qaim Din case were that the plaintiff had claimed to preempt the sale on the grounds (a) that he was a co-sharer in the Khata and (b) that he was a co-owner in the Taraf, Patti or the sub-division in which the land in suit was situated alleging that the vendee was not a co- owner therein. The plaintiff was not proved to be a co-sharer in the Khata. The Courts, however, held that the plaintiff was a co-owner in the Taraf, Patti and the sub-division concerned and also that "the new land is situated in Patti Amir Khan and the plaintiff-respondent has been held to be an owner in the said Patti". In that case there were consolidation of holdings during the pendency of the suit; the plaint was amended and the relief of possession was sought in respect of the new land also. Thus, what distinguishes that case from this case is the important fact that in that case, despite the consolidation of holdings the plaintiff had continued to retain his right of pre-emption.
Then the proposition of law debated in that case was altogether a different proposition; it was whether "by the operation of the consolidation proceedings, the land which was the subject-matter of the original sale no longer existed and having been substituted by the new land, no decree for pre-emption could be passed against the new land". This is not the question in this case. It is also significant to note that the learned Judge, late K.E. Chauhan, J. Did notice the class of case in which the plaintiff had based his right of pre-emption on co-ownership but had lost it during the pendency of the suit as a result of the partition of the Khata. As regards that class of case he observed that the emphasis in those cases was on the qualification of the plaintiff-pre-emptor rather than on the change in the pre-empted property" and those cases had, therefore, no relevance to the facts and circumstances of the case before him. In that behalf the learned Judge also noted the principle that the plaintiff must retain his preferential right of preemption at the date of the sale, at the date of the suit and at the date of the decree. I am, therefore, of the opinion that the ratio decidendi of Qaim Din case is not applicable to the facts of this case. I, therefore, hold that as the plaintiff had lost his right of pre-emption as a result of the consolidation of holdings and was not a co-owner of the new land at the date of the suit as also at the date of the decree, he was not entitled to pre-empt the sale.
5. For these reasons, the appeal is accepted, the judgment and decree of the learned Additional District Judge dated 7-4-1970 are set aside and the suit is dismissed. The parties are, however, left to bear their own costs.