(1.) THE plaintiff pre-emptor is in second appeal aggrieved against the judgment and decree passed by the first Appellate Court whereby his suit for possession by way of pre-emption of the land measuring 16 kanals 11 marlas being a co-sharer and thus have a preferential right to pre-empt the sale was dismissed in appeal by the first Appellate Court.
(2.) THE only question which has been raised before the Courts below is whether the plaintiff was a co-sharer on the date of decree passed by the learned Trial Court. According to the defendant-vendee, the land was partitioned and thus the plaintiff ceased to be co-sharer on the date of the decree of the trial Court, whereas as per the plaintiff the land was not partitioned as no instrument of partition has been drawn so far.
(3.) THE learned counsel for the appellant has vehemently argued that there is nothing on record that the instrument of partition was prepared in February, 1987. It is also argued that even if it is prepared in February, 1987 it will not defeat the right of the plaintiff as he continues to be co-sharer on all the three material dates i.e. on the date of sale, on the date of filing of suit and on the date of decree passed by the trial Court. Therefore, any loss of character as a co-sharer after passing of the decree by the learned Trial Court will not defeat the right of pre-emption.