1994 PLP 566 (MLD)

This revision petition has been tiled by the vendees which is directed against judgment and decree dated 27-10-1985 passed by learned Additional District Judge, Gujrat by which their appeal against judgment and decree, dated 16-7-1984 passed by trial Court decreeing the suit of the respondent for possession of land through pre-emption was dismissed.

2. In the suit right of pre-emption was claimed on the ground that the plaintiff was collateral of the vendor. Both the Courts below held that the plaintiff being collateral of the vendor had superior right of pre-emption as against petitioners-vendees who claimed that they being tenants of the land could compete with the plaintiff and defeat his right of pre-emption based on collateral-ship being inferior as compared to the right of a tenant.

3. The two Courts below held that the petitioners Nos.1 and 3 though Were tenants of the land bat they joined petitioners 2, 4 and 5 with them in the sale, who were not tenants, therefore, they were also relegated to the position of strangers and their right of pre-emption as compared with the plaintiff was not superior.

4. The revision petition was admitted to consider the contention whether the rule of sinker was applicable in Punjab. It has been held in judgments reported as Mir Ahmad and others v. Attaullah alias Atta Muhammad' and others PLD 1991 SC 210; Muhammad Ismail and others v. Karamat Ali PLD 1989 SC 474 and Maula Bakhsh and 10 others v. Muhammad Sharif PLD 1989 SC 278 that rule of sinker was very much applicable in Punjab. In view of the pronouncement of law by the Supreme Court on this subject, learned counsel for the petitioners frankly conceded that the petitioners had no right to compete with the respondent/plaintiff for being collateral he has right of pre- emption superior to the petitioners.

5. He, however, raised an objection that under section 15 of the Punjab Pre-emption Act, 1913, the respondent was not entitled to maintain suit for pre-emption as he being Qadiani by faith was not a Muslim as such could not claim to be a Muslim heir of the vendor.

6. In amplification of his argument, he submitted that in the year 1974 an amendment was made in the Constitution by virtue of which Qadianis were declared non-Muslims. The sale which is subject-matter of the suit was made on 28-8-1979 through registered sale-deed, therefore, was within the mischief of the said amendment and no averment was made in the plaint that the plaintiff was Muslim heir of the vendor as such he could not maintain the suit.

7. Since there was no objection in the written-statement filed by the petitioners regarding this point, I would not have allowed the learned counsel for the petitioners to raise this objection at this stage. However, when questioned respondent admitted that Nazir Ahmad and Muhammad Aslam vendors are Qadianis, respondent himself is also Qadiani and learned counsel for the petitioners admitted that present petitioners are also Qadianis therefore in order to dispose of this contention I would proceed to examine the law and apply the same to these admitted facts.

8. Section 15 of the Punjab Pre-emption Act, 1913 reads as under:

"Section15(a)

(b) Where sale is of a share out of joint land or property, and is not made by all the co-sharers jointly. Firstly in the lineal discendants of the vendor in order of succession; Secondly, in the co-sharers, if any, who are agnates, in order of succession; Thirdly, in the persons not included under firstly or secondly above, in order of succession, who, but for such sale would be entitled, on the death of the vendor to inherit the land or property sold."

9. From a bare reading of this provision of law, it is distinctly clear that the persons not included in firstly or secondly had been granted right of pre- emption in order of succession who but for such sale would be entitled on the death of the vendor to inherit the land or property sold, according to "Thirdly" under clause (b) of section 15 irrespective of religion which such person or vendor professed. It is only in proviso to "Thirdly" that it has been provided that in case a sale was made by a Muslim the said part "Thirdly" was to be read as Firstly in the manner that only those persons would have a right of pre -emption in order of succession who but for such sale would be entitled on the death of the vendor to inherit the land or property sold by virtue of which it could be argued that in case of sale by a Muslim only his such heirs who were Muslims could maintain suit for pre-emption because no non-Muslim could inherit any property from a Muslim on his death on account of succession/inheritance.

10. Admittedly in this case the sale was made by non-Muslims being Qadianis, it was purchased by the petitioners who are also Qadianis and respondent/plaintiff who is also Qadiani sought to pre-empt the same therefore "Thirdly" as it originally stood was applicable and the respondent being admittedly collateral of the vendors was rightly held to have superior right of pre-emption and proviso was not applicable in this case.

11. Learned counsel for the petitioners when asked frankly conceded that according to the law of inheritance followed by Qadianis the respondent/plaintiff is the collateral of the vendor as such right of pre-emption was available under section 15(b) Thirdly and no exception can be taken to the decree passed in his favour and the argument raised by learned counsel for the petitioners is of no substance.

12. For the foregoing reasons, the judgments and decrees passed by both the Courts below do not suffer from any material irregularity and illegality. The revision petition fails which is accordingly dismissed with no order as to costs. H.B.T./M-951/L Petition dismissed.