Lindsay and Sulaiman, JJ.
1. This is a defendant's: appeal arising out of a suit for pre-emption. The; main plea taken on behalf of the defendant was that the plaintiff had no preference over him. The court of first instance dismissed the suit on the 24th of July, 1920. On appeal the lower appellate court was of opinion that under the custom recorded in the wajib-ul-arz the plaintiff had a right of preference as against the defendant vendee though the latter was a co-sharer in the same thok. The decree of the first court was accordingly set aside and the suit decreed. A second appeal was preferred to this Court on the 28th of July, 1921, and one of the grounds raised in the memorandum of appeal was that inasmuch as the plaintiff respondent had ceased to be a co-sharer at the time of the lower appellate court's decree, his suit should have been dismissed.
2. An affidavit was filed in support of the allegation implied in that ground and time was given to the opposite party to file a, counter affidavit if necessary. No such affidavit was filed.
3. We may, therefore, take it that it is the appellant's case-that on the 20th of April, 1921, the share of the plaintiff pre-emptor, on the strength of which he had instituted the suit, was sold at auction and purchased by a third party. This sale was subsequently confirmed and a sale certificate/of a later date was issued, a certified copy of which is produced along with the affidavit. We may, therefore, take it that the plaintiff respondent ceased to be a co-sharer on the 20th of April, 1921. This, however, was a date subsequent to the date of the first court's decree. But we would like to note that although the auction-purchase had taken place before the passing of the decree of the lower appellate court, the fact was never brought to the notice of that court.
4. It is well settled law that a plaintiff pre-emptor in order to be able to maintain a suit for pre-emption must establish his right to pre-empt on three important dates. He must have a right of pre-emption at the time when the sale took place; otherwise he would have no cause of action at all. He must also have the same right at the time when the suit is brought or else he would have no locus standi to sue. A possible view to take might have been that nothing which happens after the institution of a suit can alter the position of the parties. But it has been held in a number of cases by this Court that it is incumbent on the plaintiff to prove that his right to pre-empt continues up to the date when the decree ought to have been passed in his favour, namely, the date on which the case was disposed of by the first court. It matters little whether the--court of first instance did actually dismiss or decree his suit. The date of that court's decree is the date on which, if the-plaintiff's contention is correct, the decree ought to have been passed in his favour. This principle was the basis of the decision in the following cases: Ram Gopal v. Piari Lal (1899) I.L.R. 21 All. 441 Bhagwan Das v. Mohan Lal (1903) I.L.R. 25 All. 421 Rohan Singh v. Bhau Lal (1909) I.L.R. 31 All. 530 and of Shankar Lal v. Karori Mal S.A. No. 518 of 1922, decided on 1st of June, 1923, recently decided by this-Bench. The last crucial date m such cases must, therefore, be taken to be the date of the first court's decree. If subsequent events were allowed to alter the form of the decree, it would lead to much confusion. It is impossible to hold that having regard to the position of the parties as it stood on the date of the first court's decree, any other decree could have been passed on that date. Furthermore, in appellate court cannot take into account these subsequent events without admitting fresh evidence in appeal, which may not always be permissible.
5. We are therefore, of opinion that the subsequent loss of the share by the plaintiff can in no way affect the right he possessed at the time when the decree in his favour ought to nave bee passed by the first court.
6. The other grounds taken in the memorandum of appeal have not been seriously pressed. The result, therefore, is that the anneal fails and is hereby dismissed with costs.