Iqbal Ahmad, J.
1. This is a plaintiff's appeal in a pre-emption suit. Both the plaintiff and the defendant vendee were on the data of the sale sought to be pre-empted cosharers in the mahal in which the property sold is situated, but the plaintiff claimed a preferential right of pre-emption as against the vendee on the allegation that ha was a cosharer in a larger division of the mahal of which the property sold was a subdivision, and, as such, came within Glass 3 of the pre-emption prescribed by Section 12, Pre-emption Act. The defendant vendee on the other hand contended that both he and the plaintiff were cosharers in the mahal and came within the category of Glass 4 of the pre-emption provided by Section 12. The trial Court accepted the allegation of the plaintiff and decreed the suit but, on appeal by the defendant, the lower Appellate Court upheld the contention of the defendant vendee and dismissed the suit.
2. The property sold is situated in village Supa in mahal Nanhey. This mahal consisted of various pattis one of which was named as patti Khalbal and another as patti Bhoiraj. It is unnecessary to mention the names of the other pattis in the mahal. Tha plaintiff was a cosharer in patti khalbal and the defendant was and is a cosharer in patti Bhojraj, Long before 1 the sale sought to be pre-empted patti khalbal was partitioned into four pattis, 1 and the property sold to the vendee was 1 formed into a separate patti called 'Malikana Astaraf Debi Din'. It is common I ground that the plaintiff had no share in this last mentioned patti and his share in the original patti Khalbal was constituted into a separate patti styled as patti Ghair Khwahindgan. The plaintiff's contention was that, as the share sold once 1 formed part of patti Khalbal in which he I was a cosharer and the vendee was not, he I came within Class 3 of the pre-emptora, The defendant on the other hand asserted that as on the date of the sale the patti sold was a separate entity and not the sub-division of a larger division of the mahal the plaintiff did not come within the category of Class 3 of the pre-emptors.
3. In my judgment the defence raised by the defendant was well founded and was 1 rightly accepted by the lower Appellate Court. It is no doubt a fact that the share sold once formed part of patti Khalbal in which the plaintiff was a co-sharer, I but it is clear that on the partition of that patti into four pattis that patti ceased to exist and on the date of the sale in favour of the defendant vendee was no longer in existence. The patti sold to the defendant vendee was no doubt a sub-division of Mahal Nanhey, but was not the sub-division 'of a larger division' of that mahal within the meaning of Section 12, (Class 3) of 1 Act, for the simple reason that mahal Nanhey on the date of the sale consisted of various pattis but those pattis in their turn were not part of any larger division of the mahal. The provisions of Section 12, Class 3, Agra Pre-emption Act, come into play only when on the date of the sale there are divisions and sub-divisions in a mahal such as thoks and pattis or pattis and khatas and has no application to a case when the property sold is situate in a mahal the component parts of which are thoks or pattis and there is no sub-division of those thoks or pattis.
4. A perusal of Section 12, Agra Preemption Act makes it abundantly clear that the right of pre-emption has been granted by the Act primarily on the principle of nearness in space and it is because of this principle that the cosharers in a division of the mahals have been given a right of pre-emption in the case of a sale of a share of a sub-division of that division in preference to the cosharers of the mahal. When however a mahal is not divided and sub-ivided, there cannot be a pre-emptor of the category of Class 3 prescribed by Section 12 of the Act. The mere fact that the patti sold to the defendant vendee was once a part of patti Khalbal could not give She plaintiff a preferential right of preemption as on the date of the sale patti Khalbal was not in existence. It is well settled that the right of pre-emption must exist on the date of the sale with respect to which the right is claimed. It follows that the class of pre-emptors provided for by Section 12 must be determined with reference to the constitution of the mahal on, the date of the sale and not with reference to the constitution of the mahal on some earlier date. In the present case on the date of the sale in favour of the defendant vendee, the mahal was divided in various pattis but there was no sub-division of those pattis. The plaintiff was a cosharer in one of the pattis in the mahal, the defendant vendee was a cosharer in another patti of the mahal and neither of them was a cosharer in the patti sold. The position of both the plaintiff and the defendant vendee was therefore of mere co-sharers in the mahal and both of them came within the category of Clause 4 of the pre-emptors laid down by Section 12. The plaintiff therefore had no preferential right of pre-emption as against the defendant vendee and his suit was rightly dismissed the lower Appellate Court. Accordingly I dismiss this appeal with costs.
5. N.B. - Leave to appeal under the Letters Patent is granted.