2003 PLP 299 (MLD)

MUHAMMAD YUNUS SURAKHVI, ACTG. C.J.‑‑‑This appeal by way of leave of the Court, has been directed against the judgment and decree passed by the High Court on 6‑10‑2001, whereby the appeal filed by respondents Nos. l and 2 was accepted.

2. The necessary, facts for the disposal of present appeal are that respondents Nos. 1 and 2 filed a suit for pre‑emption in respect of suit land in the Court of Senior Civil Judge, Bhimber. The suit was resisted by the defendant‑appellant. An application 'for amendment on behalf of plaintiff‑respondents and another application to dismiss the suit on behalf of defendant‑appellant were move. The trial Court after hearing the arguments of the parties rejected the plaint under Order VII, rule 11 of the Code of Civil Procedure. An appeal filed before the District Judge was also dismissed. The High Court vide its impugned judgment and decree, dated 6‑10‑2001 accepted the appeal and set aside the impugned orders passed by the trial Court as well as the District Judge. The High Court allowed the amendment application and also allowed that the subsequent vendee, be impleaded as party in the proceedings. The case was remanded to the trial Court to proceed afresh in accordance with taw. It is the aforesaid judgment and decree of the High Court which are the subject‑matter of present appeal.

3. In support of appeal it was vehemently contended by Ch. Muhammad Sharif Tariq, the learned counsel for the appellant, that the previous judgment passed by the High Court on 28‑6‑2000 attained finality as the same was not challenged before any Court, therefore, it would operate as res judicata and the subsequent vendee could not be impleaded as a party in the first pre‑emption suit. The learned counsel further submitted that the pre‑emption suit being piratical in nature, the pre‑emptor could be divested of or deprived of the right of pre‑emption by creating a device. The aforesaid argument of the learned counsel for the appellant is not tenable for the reason that even after the promulgation of amended provision of the Azad Jammu and Kashmir Right of Prior Purchase Act, the same has been recognized as one of the substantive rights under the Islamic law. In this case the subsequent sale deed was executed by the first vendee in favour of second vendee on 1‑12‑1998 before the institution of the suit, therefore, the provisions of law of lis pendens will not be attracted. The learned counsel further maintained that respondents Nos.1 and 2 adapted a wrong forum by filing second suit against the second sale‑deed and the second suit of respondents was dismissed due to non‑compliance of order of the Court for not depositing the 1/5th of the consideration amount and the judgment having attained finality, the subsequent suit was not maintainable. The learned counsel also pressed into service the submission that respondents Nos.1 and 2 did not move an application impleading the subsequent vendee as a party within the time stipulated by the Limitation Act under the amended provisions of the Prior Purchase Act. Therefore, the Law of Limitation will apply with its full force and the suit was liable to be dismissed. The learned Judge in the High Court, according to the learned counsel for the appellant, applied wrong Articles of the Limitation Act. According to the learned counsel for the appellant, Articles 120 and 144 of the Limitation Act are not attracted in the present case because the limitation provided under the Limitation Act is only four months and the application for amendment was moved on 28‑9‑2000 after the lapse of about one year and eleven months: therefore, the application was wrongly accepted. The learned counsel contended that the first vendee could resell the land to any person having equal or superior right in order to defeat the right of pre‑emption, but in the instant case a legal bar has been created against the respondents on the basis of judgment of the High Court dated 28‑6‑2000.

4. On the other hand Mr. Muhammad Rafique Dar, the learned counsel for the respondents, fully supported the impugned judgment and decree passed by the High Court on all counts. He contended that the High Court committed no illegality nor any infirmity is found in the impugned judgment and decree‑passed by the High Court.

5. We have given our due consideration to the arguments advanced by the learned counsel for the parties and also gone through the record carefully. The suit‑land was transferred in favour of the appellant through a sale‑deed executed on 30‑10‑1998. The vendee‑appellant through a sale‑deed executed on 1‑12‑1998 transferred the suit‑land in favour of Muhammad Ramzan. The plaintiff‑respondents filed the present suit and another suit against the subsequent vendee. The suit filed against the subsequent vendee. Muhammad Ramzan, was rejected on account of failure of the plaintiffs‑respondents to deposit 115th of .the pre‑emption money, finally by the High Court. However, after the dismissal of the suit, the plaintiff‑respondents moved an application seeking amendment to array Muhammad Ramzan, the subsequent vendee, as party in the proceedings and also sought necessary amendment claiming the superior right of pre‑emption against him.. The defendant‑appellant also moved an application that the suit may be dismissed on account of the plaintiffs‑respondents having no cause of action for the suit‑land having been transferred in favour of the subsequent vendee. The trial Court after hearing the parties rejected the suit and the District Judge also concurred with the same findings.

6. The respondents filed the present suit against the first vendee, Amanat Ali, on 15‑12‑1998 to pre‑empt the sale effected through a sale -deed executed on 30‑10‑1998. The first question arises whether the plaintiffs‑respondents have the cause of action against the first vendee and therefore, the suit is maintainable in spite of the suit‑land having been transferred in the name of second vendee, Muhammad Ramzan. The second question is that what would be the effect of rejection of the plaint filed by the present respondents against the subsequent vendee. Would it be a bar for the respondents seeking amendment to add subsequent vendee as party and also to seek necessary amendment claiming the superior right of pre‑emption.

7. The plaintiffs‑respondents have claimed their superior right of pre‑emption against the vendee‑appellant on the grounds that they are real sisters of the vendor and also co‑sharers in the suit‑land. The suit was filed on other grounds as well.

8. The proceedings in which the legal demand of a right is made, is called the cause of action which refers to every, fact; if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment and which, if not proved, gives the defendant a right to P` judgment, which means that the whole of the material fact is necessary for the plaintiff to allege and prove in order to succeed. It may further be clarified that the term 'cause of action' refers to the grounds on the basis of which the plaintiff asks for a favourable judgment and is not related to the defence or the relief prayed for.

9. Under the Prior Purchase Act, a pre‑emptor can enforce his ;fight of prior purchase against a purchaser on the grounds permissible under law within the period of limitation provided for it. It may also be mentioned that the right is exercisable against the first vendee and in case of a transfer of the property by the first vendee in favour of the subsequent vendee/transferee, he has to take the transfer subject to the rights of the pre‑emptor against the original purchaser. It follows that if a pre‑emptor exercises his right of pre‑emption against the vendee, the transfer of the property in favour of subsequent vendee is subject to the rights of the pre‑emptor against the first vendee. Therefore, it can safely be held that the cause of action arisen to the plaintiff shall not be defeated by transfer of the property in favour of the subsequent vendee. The reliance in this regard is placed on Sarwar Shah and another v. Mst. Nargis Bibi (PLD 1974 Azad J&K 1) wherein the following observations were made:‑‑ "Enforcement of right of pre‑emption arises in respect of the particular sale which furnished a party with a definite cause of action and the parties to such suit are those who are parties to the sale, a subsequent transferee from the original vendee is neither directly concerned in the action nor is he affected thereby. If a purchaser under a sale‑deed in respect of which the cause of action for the suit for pre‑emption has arisen has subsequently transferred the property to another, the original cause of action for pre‑emption is riot thereby affected. The subsequent transferee from the original vendee must take the transfer subject to plaintiff's right to pre‑empt. If, therefore, the suit against the original purchaser is brought within limitation under Article 10 but the subsequent transferee is afterwards impleaded as a defendant after the said period of limitation, the suit against the transferee is, in fact, merely for a declaration and is governed by six years limitation under Article 120 or as one for possession against a person who is in possession without title and so is governed by 12 years rule of limitation under Article 144. "

10. The proposition also came under consideration before a Division Bench of the Allahabad High Court in the case of Sri Thakurji Maharaj :find another v. Sujan Singh and others (AIR 1939 Allahabad 158) wherein the same was resolved in the following words:‑‑ "If a purchaser under a sale‑deed in respect of which the cause of action for the suit for pre‑emption has arisen has subsequently transferred the property to another, the original cause of action for pre‑emption is not thereby affected. The subsequent transferee from the original vendee must take the transfer subject to plaintiff's right to pre‑empt." In an unreported judgment of the High Court titled Abdul Qayyum Khan v. Muhammad Said Khan and others (Civil Appeal No.8 of 1997, decided on 3‑6‑1999) the necessary facts were that plaintiff‑appellant Abdul Qayyum Khan filed a suit on the basis of right of prior purchase to the Court of Sub‑Judge Pallandri. This suit was resisted by the opposite party on number of grounds including the ground that the sale deed was cancelled, therefore, the plaintiff had no cause of action to pre empt the sale. It was asserted that before the filing of pre‑emption suit the vendors filed a suit for cancellation of sale‑deed against the vendee respondent who admitted their suit, as such a compromise decree was passed in their favour whereby the sale‑deed was held to be cancelled. The plaintiff‑pre‑emptor, therefore, filed another suit challenging the aforesaid compromise decree as being illegal, fraudulent and of no legal effect.

11. While dealing with the aforesaid proposition, the High Court relying on a case reported as Falak Sher v. Muhammad Rashid and another (PLD 1982 Lah. 426) observed as under:‑‑ "In some of the precedent cases it has been ruled that where after the filing of the pre‑emption suit the vendee resells the land, involved in the suit, in favour of the vendor, it does not defeat the right of pre‑emption claimed in the suit. Some of these cases have been reported as Muzaffar Khan v. Muhammad Khan and others (38 PLR 224), Imami v. Allah Diya and others (40 IC 767), Sukha and others v. Arura Mal and another (PLR 1908 Lah. 165) and Pal Singh and another v. Jamun (49 IC 159). Collusion between the vendor and vendee in the instant case, which had resulted in the declaratory decree in question was also aimed at giving back the disputed land to the vendor with a view to defeating the pre‑emption suit brought by the respondent. That decree is, therefore, on no better footing than the resale of land by the vendee in favour of the vendor. The disputed decree would, therefore, not adversely affect the suit for pre‑emption. Resultantly, I find no merit in the plea raised by learned counsel for the appellant that the Court seized of the pre‑emption suit had no jurisdiction to hold that the declaratory decree which was collusively obtained by the appellant from another Court, was ineffective qua the suit for pre‑emption." In a case reported as Rehmat Ali and 10 others v: Ahmed Yar 979 CLC 690) it was observed asunder:‑‑ "It is well‑settled that in pre‑emption cases if resale is made by the, vendee to favour of a person having superior right of pre emption as against the pre‑emptor, the suit of such. a pre‑emptor can be defeated; for in such a case a person possessing superior right of pre‑emption, instead of bringing a suit for pre‑emption buys the property privately and thus the pre‑emptor stands non suited. However, the suit cannot be frustrated if the resale is made by the vendee in favour or a person not having right of pre‑emption superior to that of the pre‑emptor. In the instant appeal, it is not a case of frustration of the first bargain. The resale was an independent transaction which as observed above took place in respect of part of the land during the pendency of the suit whereas part of the land was alienated after the institution thereof. It is also a settled proposition that a vendor cannot claim a superior right of pre‑emption vis‑a‑vis the sale transaction sought to be pre‑empted. On this analysis appellant No.l did not have superior right of pre‑emption as against the respondent in respect of the original sale. In Pal Singh and others v. Jamun and others (11 PR 1919) it has been laid down that a right accrues to a pre‑emptor, having superior right of pre‑emption on the date of sale and such right cannot be defeated by resale. This view also finds support from Imami v. Allah Diya (24 PR 1918). The learned trial Court rightly. relied upon this case‑law. I have gone through the ruling reported as. PLD 1952 Pesh. 1, it does not in any manner advance the appellant's case."

12. Relying upon the aforesaid authority and, the authority titled Mst. Khurshid Begum and 6 others v. Muhammad Fazal and 3 others (PLD 1981 SC (AJ&K) 103), it can safely be held that even in case the suit property was transferred to the vendors by vendee, the superior right of pre‑emptor cannot be defeated as the vendors cannot claim any right against him. Thus, it leads us to the conclusion that the pre‑emptor has not to enforce his superior right of pre‑emption against the subsequent vendee. However, in case of transfer of property with its possession, he is to be added to as a party for which the period of limitation either would be under Article 120 or 144 of the Limitation Act providing for six years or twelve years of limitation. The original suit is filed under the limitation provided in Article 10 of the Limitation Act. It will not be out of place to mention that the suit against the transferee is merely for the possession without title. Reliance in this regard is again placed on Sri Thakurji Maharaja's case, referred to above, wherein it is held as follows:‑‑ "If a purchaser under a sale‑deed in respect of which the cause of action for the suit for pre‑emption has arisen has subsequently transferred the property to another, the original cause of action for pre‑emption is not thereby affected. The subsequent transferee from the original vendee must take the transfer subject to plaintiff's right to pre‑empt. If, therefore, the suit against the original purchaser is brought within limitation under Article 10 but the subsequent transferee is afterwards impleaded as a defendant after the said period of limitation the suit against the transferee is in fact merely for a declaration and is governed by six years limitation under Article 120, or as one for possession against a person who is in possession without title and so is governed by 12 years rule of limitation under Article 144."

13. It was argued on behalf of the appellant that a pre‑emption suit filed on behalf of the respondents was rejected as such the present suit cannot proceed. In view of the discussion made above it requires no elaborate discussion that filing of an independent suit against the subsequent vendee particularly when a suit asserting the right on various grounds, was filed against the original vendee, is meaningless as the rights are to be determined between the pre‑emptors and the first vendee. Even otherwise a suit rejected under Order VII, rule 11, C.P.C. is no bar for filing a fresh suit subject to limitation under Order VII, rule 13, C.P.C. The principle of res judicata has no application even otherwise as; (i) the first vendee was not party to the suit, (ii) the matter had not been finally concluded on merits, and (iii) the order of rejection of suit under Order VII, rule 11, C.P.C. is no bar to the filing of fresh suit subject to limitation under Order VII, rule 13, C.P.C. :Therefore, the rejection of plaint filed against the subsequent vendee would have no bearing while disposing of the amendment application filed for arraying as party in the proceedings. In the present case the suit against the original vendee was filed within the prescribed period of limitation of four months and the application for impleadment of subsequent vendee was also well within limitation as under Article 120, the limitation provided is six years while under Article 144, the same is provided as 12 years, therefore, the orders passed by the subordinate Courts, i.e. the Sub‑Judge and the District Judge, are illegal and as such have rightly been set aside by the High Court.

14. In the light of what has been stated above, finding no force in this appeal, the same stands dismissed with costs. The trial Court shall proceed with the suit of the plaintiffs‑respondents in accordance with law as directed by the High Court. H.B.T./331/SC(AJ&K)