Lindsay and Sulaiman, JJ.
1. We think this appeal must be allowed in view of the law as laid down in the case of Baldeo Misir v. Ram Lagan Shukul (1923) I.L.R. 45 All. 709.
2. The relevant facts are as follows:
The plaintiff, who is the appellant here, sued for preemption and apparently admitted that he was not entitled to any preference against the vendee unless he could show that he was a co-sharer in a certain khewat No. 152.
3. In the trial court he produced evidence to show that he was a co-sharer in this khewat and he relied upon a deed of sale which had been executed in his favour by one Jawahir on the 10th of January, 1919.
4. At the same time this pre-emption suit was being tried in the court of the Munsif, a suit had been brought by the sons of Jawahir to set aside this sale of the 10th of January, 1919. The suit was pending but had not been decided at the time the Munsif gave his decree in the pre-emption suit.
5. The Munsif was of opinion that inasmuch as the plaintiff Umrao had shown that he was also a co-sharer at the time of the sale sought to be pre-empted, that he was also a co-sharer at the time the suit was brought and that he was still a co-sharer at the time the suit was being decided, he was entitled to a decree.
6. It happened that on the 27th of April, 1921, that is to say, more than three months after the first court's decree had been passed, Jawahir's sons succeeded in getting the sale of 1919 set aside. The decree setting that sale aside was afterwards affirmed in appeal.
7. When the appeal against the decree in the pre-emption suit was heard by the Additional Subordinate Judge of Banda, on the 1st of August, 1922, he dismissed the claim of the plaintiff on the ground that the plaintiff was no longer a co-sharer. That finding of course was based upon the judgment to which we have referred and which was passed on the 27th of April, 1921, the judgment by which Umrao was deprived of the property at the suit of the sons of Jawahir.
8. We have held in the case which has been cited at the beginning of this judgment that in dealing with suits for preemption three dates have to be looked to, namely, the date of the sale sought to be pre-empted, the date of the suit and the date of the first court's decree. We held in that case, and we hold in this case, that it is not competent to courts in appeal to pay regard to any events which may happen subsequent to the date of the first court's decree; if on that latter date the plaintiff has a subsisting right to pre-empt, he is entitled to succeed and his suit cannot be defeated because, by reason of some event which has happened subsequent to the date of the first court's decree, he has lost the status of a co-sharer.
9. We, therefore, allow this appeal, set aside the decree of the court below and restore the decree of the court of first instance. The appellant is entitled to his costs both here and in the court below.