Tudball and Muhammad Rafiq, JJ.
1. This appeal arises out of a suit brought to enforce a right of pre-emption based on village custom. Both the courts below have dismissed the plaintiffs' suit. The plaintiffs pre-emptors were co-sharers in the village at the date of the sale. The vendee was a stranger on that date. After the institution of the suit certain property was gifted to the vendee by which he became a co-sharer in the village such that against him, under the custom, the plaintiff's would have no right to pre-empt. The courts below have held that the suit for pre-emption was bound to fail by reason of this subsequent acquisition by the vendee of a share in the village, which placed him upon an equal footing with the pre-emptors in the co-parcenary body. The decisions are based upon the principle that the plaintiffs must, in order to succeed, be entitled to preempt not only on the date of the suit but also up to the date of the decree. The plaintiffs appeal and on their behalf attention is called to a Division Bench of this Court in the case of Rohan Singh v. Bhau Lal (1909) I.L.R. 31 All. 530. The head-note of the report is misleading. It is set forth there that the Court held that the suit could not be dismissed, the pre-emptor having been entitled to a decree at the date of the institution of the suit. An examination of the judgment would show that though the learned Judges who constituted the Bench were inclined to that opinion they came to no definite decision on that point. They decided the case really on a different ground. The only case of this Court which is of any use to us in the present matter is that of Ram Gopal v. Piari Lal (1899) I.L.R. 21 All. 441. In that case the plaintiff when he filed his suit for pre-emption had a full right under the custom set out in the wajib-ul-arz to pre-empt the property. Pending the decision of the suit, however, the mahal was partitioned and the plaintiff's share was put into a totally different mahal, so that on the date of the decision of the case, he was no longer a co sharer in the mahal in which the property lay, that he was attempting to pre-empt. The learned Chief Justice in his judgment in that case remarked at page 444 as follows:
That seems to be a strong reason for dismissing the suit, unless it can be shown that there is some general principle of law or procedure which compels us in disregard of the custom, and which would compel us in disregard of a contract, if this were a case of contract, to look exclusively to the state of things that existed at the data of the institution of the suit, and to say that because on that date the plaintiff was entitled to pre-emption he is to have a decree for pre-emption, although since that date his right has ceased to exist. It appears to me impossible to maintain that there is any such general principle of law.
2. And on page 445 he remarked:
There is therefore nothing which compels us to look exclusively to the date of the institution of the suit, to disregard all that has since happened, and to confirm the decree for pre-emption, although at the data of the decree the plain-tiff was not entitled to pre-emption according to the terms of the wajib-ul-arz upon which the suit was based.
3. It is quite true that in that suit it was a case of a plaintiff pre-emptor losing his right to pre-empt by reason of his property having been removed and placed in a different mahal, that is, by his having become a stranger to the mahal in which was the property sought to be pre-empted, whereas in the case before us the plaintiff's position has not changed so far as the mahal is concerned, or his own property, but the position of the vendee has changed. It seems to us immaterial, however, whether it is the plaintiff's position that has been changed or that of the vendee. The result in either case is that on the date of the decree the plaintiff was no longer in a position to say to the court, I am a person who is entitled to pre-empt as against the vendee. Our attention has been called to certain decisions of the Punjab Chief Court in which the opposite has been held by a majority of Judges, An examination of the decisions, however, shows that the court was divided in its opinion, and we think that the opinion expressed by the late Chief Justice of the Punjab Chief Court is one which carries more weight with us. In principle we are unable to distinguish the present case from the case of Ram Gopal v. Piari Lal (1899) I.L.R. 21 All. 441; and we think that the courts below were correct in dismissing the plaintiff's suit. The appeal therefore fails and is dismissed. We make no order as to costs.