P L D 1967 Lahore 1171 (PLP)

Nawab Khan defendant No. 1 (hereinafter called the vendor) sold an area of 17 kanals and 2 marlas located in Khata No. 88/415 to 417 and consisting of Khasra Nos. 614, 563, 572 and 622 (hereinafter called the old land) as per Jamabandi for the year 1946‑47 situated in Village Bohar Tahsil and District Sialkot. The sale was in favour of Qaim Din defendant No. 2 (hereinafter called the vendee or the appellant). Said Ahmad (hereinafter called the plaintiff) brought a suit for pre‑emption of the above land. It is to be pointed out that during the pendency of the suit, the land aforesaid went under consolidation proceedings and the vendee in lieu thereof was given another piece of land bearing Khasra Nos. 117, 122, 123 and 318 (hereinafter called the new land). The plaintiff thereupon amended his plaint wherein he claimed a decree for both types of land (presumably implying that decree may be given to him of that land to which he was entitled according to law). The sale had been made for an amount of Rs. 5,500 and at the moment there is no dispute about the same. The trial Court by means of its judgment and decree dated the 9th of November 1955, decreed the suit in favour of the plaintiff with a direction that the decree shall include both the lands, namely the old and the new and that plaintiff would be entitled to get the possession of the new land, which hart been allotted to the vendee, defendant No. 2, in lieu of the old land. The vendee filed an appeal which was dismissed by the learned Additional District Judge, Sialkot, on the 20th of May 1957. The vendee Qaim Din has thereafter come up in second appeal to this Court.

2. The claim for pre‑emption by the plaintiff‑respondent in this case was based (a) upon his being a co‑sharer in the Khata and in the land in dispute and (b) on his being a co‑owner in the taraf, patti or the sub‑division in which the land was situated alleging that the vendee‑appellant was not a co‑owner therein. The claim on the first ground was neither proved nor pressed but the Courts below accepted the second ground and held that the plain tiff was a co‑owner in the taraf, patti and the sub‑division concerned. It is to be mentioned that both the Courts have held that the new land is situated in Patti Amir Khan and the plaintiff respondent has been held to be an owner in the said patti.

3. The first point argued by the learned counsel for the vend appellant is that since the land in dispute has undergone consolidation operations, and the vendee, in the course of those operations, has obtained the new land, therefore, the pre‑emption suit could not have proceeded with the Courts below have acted illegally in decreeing the plaintiff's suit. His precise argument is that by the operation of the consolidation proceedings, the land which was the subject‑matter of the original sale no longer existed and having been substituted by the new land, no decree for pre‑emption could be passed against the new land. There is no force in this contention and my reasons for so holding are as follows:‑ (a) The right of pre‑emption can be called to be of two kinds, with reference to the time of its examination. (i) If examined prior to any impugned sale, it is at that stage, in the nature of a substantive, primary, and antecedent right. It exists before and independently of any wrongful act or omission, that is to say, it entitles the person of inherence in preference to a third person to an offer of sale of the property, which is the object of the right, by the person of incidence, upon whom a corresponding primary duty to make such offer is laid. This is borne out from the provisions of section 19 of the Punjab Pre‑emption Act I of 4 1913 as well (hereinafter called the Pre‑emption Act which provides for notice of sale by the intending vendor. Also see Saw al Das v. Gur Parshad 90 P R 1909 decided by Sir William Clark, C. J., Reid, Robertson, Kensington, Rattigan, and Shah Din, JJ. It was adopted by Shadi Lal, C. J. and Bhide, J., in Ram Sahai v. Muhammad Tufail and another (1929) 30 P L R

88. The same is the view laid down in Mehr Bakhsh and another v. Maula Dad and another P L D 1951 Lab.

113. The right is dormant or potential until the vender sells of his own motion, but nevertheless, the right exists without being exercised. Also see Thakur Madho Singh and another v. Lt. James R. R. Skinner and another A I R 1941 Lab. 433 per Din Muhammad J. (ii) If examined after the impugned sale, then at that stage, it is a remedial right, which comes into existence after primary right has been infringed $ by a sale of property in question being made by the person of incidence to such third person, and its purpose is the removal of the injury complained of by the substitution of the person of inherence for the vendee who aided in the infringement of the primary right. However, care should be taken to remember that until a sale actually takes place, no person can assume to have a right of pre‑emption which is not a right in property (jus in re aliena) but merely a right in certain defined circumstances (which necessarily pre‑suppose a sale) to acquire property in preference to other persons. See Dhani Nath v. Budhu and others 136 P R 1894 as per Sir Meredyth, Kt, J., It is erroneous to describe the right of pre‑emption as a right of "forbidding alienations". Its very name shows that this is not its true nature and it is obvious that when a sale takes place those favoured individuals who have the right can pray for substituting themselves, if they so think fit, for the vendees, but not the right to forbid the sale. They cannot ask the Court to annul the sale. All that they can claim is that, if the sale is in favour of a person who is not one of the favoured classes, the Court shall delete the name of the vendee and sub stitute their own names in his place. See Sanwal Das v. Gur Parshad 90 P R 1909 at p. 371 per Rattigan J. Similarly, it is not merely a right of re‑purchase from the vendee. Gobind Dayal v. Inayatullah I L R 7 All. 775 at p. 809 per Mahmood, J. and Sanwal Das v. Gur Parshad. In some cases when examined from a different point of view it was described as a right of a piratical nature, but in a large number of cases the law of pre emption has been considered as a law sole object of which is (i) to presever the integrity of the village and the village community; (ii) to implement the law of succession; (iii) to avoid fragment ation of holdings; (iv) to reduce the chances of litigation and fractions and to promote public order and domestic comfort and (v) to meet the needs of a particular society at a particular stage of the evolution. These objects have been recognized and stated in a number of decisions and reference can be made to Nusrat Raza v. Umbal Khyr Bibee (1867) 8 W R 309 where it was held that the:‑ "Right to pre‑emption is very special in its character. It is founded on the supposed necessities of a Mohammaden family, arising on their minute sub‑division and inter division of ancestral property." Again their lordships of the Privy Council in Digamber Singh v. Ahmad Sayed Khan (I L R 37 All. 129 at p. 141(P C) observed.‑ "The object is, as far as is possible to prevent strangers to a village from becoming sharers in the village. Rights of pre emption, when they exist, are valuable rights." It was held in Khan Bahadur Muhammad Ali Khan v. Rai Bahadur Makhan Singh and others (73 I C 855 (Pesh.) that:‑ ". . . .One of the main reasons for the acceptance of a pre emptive right is the vital necessity felt by every community, when it first becomes homogeneous, to preserve to itself its essential homogeneity. To allow landed estate to pass into the hands of strangers is not only to deprive the community of a valuable asset into which its communal right has not been entirely abandoned, but also to entail the dissolution of its internal organisation by the engrafting of strangers upon the common body. For these reasons the first right of pre‑emption in the case of agricultural land or of the sites of agri cultural villages accrues primarily to the relatives of the original owner and after them to other members of the proprietary body." An examination of the provisions of section 15 of the Pre emption Act shows that the above‑mentioned is the sole object of the law of pre‑emption and it cannot be said that this is an object which is not in the public interest. On the other hand, the preservation of a homogeneous village community is undoubtedly in the interest of general public and it is clearly a reasonable restriction, for it has existed for many years and its extent is just sufficient to achieve the aims in view. Under section 15, the right of pre‑emption has been given in the first instance to the descendants of the vendor in the order of succession, then‑ to the co‑ sharers who are agnates in order of succession and fourthly to c the co‑sharers. Failing these, the right vests in inferior or superior proprietors, when the land is sold to superior or inferior proprietors, respectively, then in the owners of the patti, the owners of the estate, and the tenants and finally in the occupancy tenants. The sole object of this legislation is to preserve the homogeneity of the village community and to prevent fragmentation of holdings. The terms of section 15 do not go beyond the object aimed at and the restrictions imposed are just sufficient to achieve the interest of general public in the way indicated above. Punjabi State v. Inder Singh and others (A I R 1953 Pb. 20). In Sayed Sayeed‑ud‑Din Ahmad v. Haji lunus Mia (P L ‑D 1960 Dacca 416), the object of Muhammaden Law of pre‑emption was described as:‑‑ "to prevent the inconvenience which may result from the introduction of disagreeable stranger as a coparcener or as a near neighbour. It is based on the ground of convenience and its object is to prevent possible vaxation arising from a disagreeable neighbour." This being the nature, importance, significance and utility of the right of pre‑emption, it is not easy to accept that it is lost merely because consolidation proceedings have started in the village. The object of the consolidation being to reduce the number of plots in the village and to avoid fragmentation, the same is the institution and object of pre‑emption as well. The right of pre‑emption therefore, will be enforced because it will tend to achieve the same objects, which the consolidation operations aim at and there D being no conflict between the two, both of them can work side by side. It is well‑settled that statutes in pari materia, though passed at different times ought to receive a uniform construction as laid down in Sham Singh and others v. Vir Bhan and others (A I R 1942 Lah. 102) and Acts in pari materia can be treated as one code and read together, as per Daya Chand Nemchand v. Hem‑Chand Dharam Chand and others (1 L R 4 Bom. 515) Consolidation proceedings have never in view the destruction of other rights of the persons concerned. The proceedings do not annihilate those rights and on general principle, therefore, it is not correct to argue that consoli dation proceedings will destroy the pre‑emptive right of parties with regard to the lands under consolidation. (b) Apart from the broad feature of a right of pre‑emption as noted in general in the earlier sub‑paragraphs, section 4 of the pre‑emption Act may also be taken note of. This section defines the right of pre‑emption as follows:‑ The right of pre‑emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosures of the right to redeem such property. Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale." The definition, it will be seen, points towards the same incidents and characteristics regarding the nature of the right of pre emption, which have been noted earlier. Section 15 of the said Act (so far as relevant for the purpose of the present case) says that the "right of pre‑emption in respect of agricultural land", "shall vest" in the persons mentioned therein. Section 21 says that, "any person entitled to a right of pre‑emption may, when the sale or foreclosure has been completed, bring a suit to enforce that right." These provisions indicate that pre‑emption has been called a right, which is considered to vest in certain persons and for the enforcement of which a specific right of suit has also been granted by the statute. Proceeding in this simple analytical way, the first question to be seen is as to whether this right is destroyed when the pre‑empted land has become subject‑matter of consoli dation under the Punjab Consolidation of Holdings Act VI of 1939 (hereinafter called the Consolidation Act), or is substituted by another land under that Act. There is nothing in the Consolidation Act to show that after it is put into operation in any village or estate, and then it will destroy the vested rights of the persons or will cause them to lapse. A plain reading of the Consolidation Act will show that it in no way repeals the Pre‑emption Act expressly or even impliedly. The Consolidation Act thus in no way destroys the rights, which are created by the pre‑emption Act. If a statute gives a right and also provides a machinery and method for the enforcement of that right, then unless a strong proof is given of that right or remedy having been taken away, the Courts will be inclined towards the continuation of that right. See Sahiba Kali Kumar and others v. Chuni Lall Chatterjee (A I R 1927 Cal. 748) where it was held as follows:‑ "An Act is not to be considered to take away the rights and privileges conferred by a former Act unless it is quite clear from the provision that it does so." Not only that, a right of pre‑emption as laid down in various authorities is a vested statutory right but the right of suit is also a vested right both in general as per Messrs Gordhan Das, Baldev Das v. The Governor‑General in Council (A I R 1952 Punj. 103), Tirumalaisami Naidu v. F Subramanian Chettiar (I L R 40 Mad. 1009), Venugopala Reddiar and another v. Krishnaswami Reddiar alias Raja Chidambara Reddiar and another (1943 F C 24) and Ajit Singh v. Bhagabati Charan Mukerjee (A I R 1922 Cal. 491), and also on the plain wording of section 21 of the Pre‑emption Act. (c) That section 12 of the Punjab Consolidation of Holdings Act IV of 1936 also points towards the same thing. This section reads as follows:‑ "Rights of landowners and tenants after consolidation same as before.

12. A landowner or a tenant shall have the same right in the holding or land allotted to him in pursuance of a Scheme of consolidation as he had in his original holding or tenancy, as the case may be." As the wording of the above section shows, in the new land, a landowner shall have the same right, which he had in the old land. Applying this section to the facts and the circumstances of the present case it will be noticed that the old land (which had been purchased by the vendee) was liable to be taken away from him by the pre‑emptor. Of that land, no doubt, the vendee was the owner for the time being, but his ownership was a contingent sort of ownership, which could be substituted by that of the pre emptor. On the plain wording of this statute, therefore, a claim of pre‑emption can be laid by the pre‑emptor to the new land. Learned counsel with reference to certain authorities like Allah Dad and another v. Hukam Dad and others (P L D 1960 Lab, 900) and Uttam Singh v. Sundar Singh and others (218 P L R 1914) argued that the right of pre‑emption is not a right in the land and, therefore, such a right cannot be said to exist in the new land just as it did not exist in the old land. The argument is misconceived. The matter is not to be examined from the point of view, as to whether right of pre. Emption is a right in the land, but from the point of view as to what rights did the vendee possess in the old land. In the old land his ownership was liable to be substituted by the pre‑emptor and the same will be the position of the new land. The question so far as this section, therefore, is concerned, is of fixing the rights of the vendees and not of anybody else s. (d) Then there is section 13 of the Consolidation Act. This section reads as follows:‑ "

13. Incumbrance of landowners and tenants.‑(1) If the holding of a landowner or the tenancy of a tenant brought under the scheme of consolidation is burdened with any lease, mortgage or other incumbrance, such lease, mort. gage or other incumbrance shall be transferred and attached to the holding or tenancy allotted under the scheme or to such part of it as the consolidation officer, subject to any rules that may be made under section 26, may have appointed in preparing the scheme; and, thereupon the lessee, mortgagee or other incumbrancer, as may be, shall cease to have any right in or against the land from which the lease, mortgage or other incumbrance has been transferred." "(2) Notwithstanding anything contained in section 11 the Consolidation Officer shall, if necessary, put any lessee or any mortgagee or other incumbrance entitled to posses sion in possession of the holding or tenancy or part of the holding or tenancy to which his lease, mortgage, or other incumbrance has been transferred under subsection (A I R 1954 S C 417)." According to this section, if there was any incumbrance on the old land, the same shall be attached to the new land. The short question to be seen, therefore, is as to whether a right of pre emption is a burden on the land or not. On this point, I may reproduce a passage from a foreign judgment reported in Shri Audh Behari Singh v. Gajadhar Jaipuria and others (A I R 1954 S C 417). In this case whole history of the law of pre‑emption was traced and it was held as follows:‑ "The correct legal position seems to be that the law of pre emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner's unfettered right of sale and compels him to sell the property to his co sharer or neighbour as the case may be. The person who is a co‑sharer in the land or owns lands in the vicinity consequently gets, an advantage or benefit corresponding to the burden with which the owner of the property is saddled, even though it does not amount to an actual interest in the property sold." "The crux of the whole thing is that the benefit as well as the burden of the right of pre‑emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre‑emptor does not amount to an interest in the land itself. If the right of pre‑emption had been only a personal right enforceable against the vendee and there was no infirmity in the title of the owner restricting his right of sale in a certain manner, a bona fide purchaser within notice would certainly obtain an absolute title to the property, unhampered by any right of the pre emptor and in such circumstances there could be no justification for enforcing the right of pre‑emption against the purchaser on grounds of justice, equity and good conscience on which grounds alone the right could be enforced at the present day. The law of pre‑emption creates a right which attaches to the property and on that footing only it can be enforced against the purchaser." "The burden and benefit of a right of pre‑emption are incidents annexed to the lands belonging respectively, to the vendor and the pre‑emptor and is not the right merely one of re‑purchase, which a neighbour or co‑sharer enjoys under Muhammadan law, and which he can enforce personally against the vendee in whom the title to the property has already vested by sale." To the same effect are observations of Clark, C. J. in Faqir Ali Shah v. Ram Kishan and others (133 P R 1907), where he held that it is a right or burden which runs with the land. Also see Mirza Sadiq Hussain and another v. Muhammad Karim and others (70 1 C 53 (Oudh) for the same and also Muhammad Ayub Khan and another v. Rure Khan and others (95 P R 1901). If this view is correct, then I have no hesitation in holding that the right of pre‑emption being a burden on the old land it must fall on the new land according to section 13 of K the Consolidation Act. Learned counsel for the appellant argued that the word incumbrance in section 13 does not cover such type of incumbrance; as a right of pre‑emption. In my opinion, the word incumbrance is wide enough to cover the liability of the land being pre‑empted. No doubt when read along with word "lease" or "mortgage", it may at first reading suggest to be confined to incumbrances which are in the nature of securities for t debts, etc. but there is no justification to give any restricted meaning to this word. The word "other" is significant to point out that the scope of incumbrances was intended to be kept wide open. (e) The view which I have taken that a plaintiff‑pre‑emptor can follow the land which is given to the vendee in consolidation proceedings is based on certain original arguments of my own. There is, however, one foreign case as well reported in Gurdev Singh and another v. Partapa (A I R 1948 E Pb. 70), which can be cited on the same point. The facts of that case were that after a pre‑emption decree, the pre‑empted property was taken over from the vendee and some new land was given to him in its place as a result of consolidation operations in the village. The pre‑emption‑decree holder wanted to follow that new land in execution of his decree for the old land. Due to some defects in the warrants issued in this behalf he could not succeed but otherwise his right to follow the new land was conceded. Head note (c) of the said report is quite illustrative and may be reproduced as follows "Under section 12, Punjab Consolidation of Holdings Act, 1936, the right of a party in the holding or land allotted to him in pursuance of a scheme of consolidation is the same as he had in the original holding or land. Holders of decree against parties having rights against the original land can also enforce their rights against the allotted land after taking proper proceedings for the purpose." Respectively adopting that view, if the pre‑emptor (decree‑holder) can follow the new land after taking proper proceedings for the purpose, there is no justification to hold that a plaintiffs pre‑emptor cannot do so in the course of the trial of the suit and pray for decree for the new land. (f) It has been laid down in Mool Chand and others v. Ganga Jal and others (I L R 11 Lah. 258) and Mst. Sent Kaur v. Teja Singh and others (A I R 1946 Lah. 142) that the doctrine of lis pendens applies to pre‑emption suits in certain respects and there is no conflict between saying that the doctrine applies and also holding that a plaintiff pre emptor must maintain his superior right of pre‑emption at three stages of the case, viz the date of sale, the date of suits, and the date of decree. See Madho Singh and another v. Lieut. James R. R. Skinner and others (I L R 1942 Lab. 155) for this discussion. If the said doctrine applies in that respect, there is no harm to extend it to a situation of the present kind as well and to hold that the replacement of the old property with a new property will bring the new property subject to the same incidents, rights and liabilities as the old property was and will not bestow any greater right to a land owner in his new holding. If his old land was pre‑emptible so will his new land be.

4. Learned counsel for the vendee‑appellant argued that in cases of pre‑emption with regard to a sale of a share in a joint property, where the right to pre‑emption is based on co‑ownership if the vendee gets the estate separated, then the suit of the plaintiff‑pre‑emptor is dismissed, because according to the learned counsel, the property undergoes a change. For this proposition he placed reliance upon Khan v. Mahonda and others (32 P R 1902), Serh Mal and others v. Hukasm Singh (I L R 20 All. 100), Janki Prasad and another v. Ishar Das (I L R 21 All. 374), Ram Gopal v. Piari Lai (I L R 21 All. 441), Ram Hit Singh and others v. Narain Rai and others (I L R 26 All. 389) and Hans Nath and others v. Ragho Prasad Singh (54 All. 189). He says that just as in those cases it was held that the suit of the plaintiff‑pre‑emptor must fail similarly in the instant case as well. I should dismiss the plaintiff respondent's suit due to the property having undergone consolidation ra tions. The argument though appears to be attractive, but I Just says with the due deference to the learned counsel, that is without any substance. The real ratio decided in the cases Cited by the learned counsel was that there the plaintiff based his right of pre‑emption on co‑ownership, which qualification he lost during the pendency of the suit and, as such, his suit had to be dismissed. It is well‑settled as laid in Atma Ram v. Devi Dyal and another (49 P R 1901), Khan v. Mahanda and others (32 P R 1902), Sanwal as v. Gur Parshad (90 P R 1909), Dhanna Singh v. Gurbakhsh Singh & Co., (91 P R 1909), Megha Rant v. Makhan Lai and others (67 P R 1912), Mohindar Singh v. Arur Singh and others (3 Lab. 267), Sewa Ram and another v. Azim Khan (A I R 1924 Lab. 613), Ladha Ram and another v. Jinda Ram and another (A I R 1923 Lab. 339) Her Keshi v. Mewa Ram and another (72 I C 247), Het Ram and others v. Dal Chand and others (14 Lab. 421), Sheikh Abdul Rahman and another v. Khan Sahib Haji Rashid Ahmad and another (A I R 1937 Lab. 182), Pandit Harbhagwan Das v. Sardar Partap Singh and others (A I R 1938 Lab. 242), Jallu and others v. Sahu and others (19 Lab. 93), Kewal Krishen v. Jain Brotherhood Ludhiana and others (1 L R 1939 Lab. 164), Madho Singh and another v. Lieut. Jaines R. R. Skinner and others (I L R 1942 Lab. 155), Bidya Pershad Ram Tiwari v. Achaibar Ram Tiwari and others (15 I C 865) and Hayat Bakhsh v. Mansabdar Khan and others (16 Lab. 921), that a plaintiff must retain his preferential right of pre‑emption at three stages, namely, on the date of the sale, the date of the suit, and the date of the decree. The aforesaid cases show that if at any of these three stages, he loses his qualification then he loses his right of pre‑emption, which is based on that qualification. The emphasis in these cases (each of which deals with one stage and the other of the three stages mentioned above)‑is on the qualification of the plaintiff‑pre emptor rather than on the change in the pre‑empted property. This distinction was brought about in Chamru Lai v. Shyam Sundar Lai and another (A I R 1940 Pat. 699) Harries, C. J. and Fazl Ali, J. where the relevant discussion proceeds as follows. "The first point raised on behalf of the appellant in the appeal was that the plaintiff had lost his right of pre‑emption by reason of the preliminary decree passed in the partition suit, and in support of his argument reliance was placed by him on an observation made by the Judicial Committee in Hans Nath v. Ragho Prasad 54 All. 189(PC). The observation is as follows:‑ `So it has been held in several cases that where between the dates of what may be called for convenience the pre‑emption sale and the institution of the suit, the pre‑emptor has lost his status as a co‑sharer by the partition of the village, Janki Prasad v. Ishar Das 21 All. 374, or the stranger purchaser has resold to another co‑sharer, Sari Mal v. Hukam Singh 20 All. 100, or has become him self a co‑sharer by an undisputed purchase or by a gift, Ram Hit Singh v. Narain Rai 26 All. 389, the right of pre emption is lost.' "It is contended that this observation supports the view that a pre‑emptor loses his right by the partition of the village, and in this particular case the partition was complete as soon as the preliminary decree in the partition suit was passed. As the observation of their Lordships of the Privy Council was .based entirely upon the decision of the Allahabad High Court in Janki Prasad v. Ishar Das 21 All. 374, it is necessary to refer to the facts of that case, which were briefly these. In February 1895 defendants 3 to 5 of the suit, which was before their Lord ships, had sold a share in an estate known a thoke Ishar Das to the defendant‑appellant Janki Prasad, a stranger to the village. The plaintiff‑respondent was at that time a co‑sharer with the vendors in thoke Ishar Das. At the time of the sale, proceedings for perfect partition of the village had been commenced and were still pending. After the sale the partition was completed, and it became operative on 1st July 1895, when the sanction of the Collector was given. By the partition thoke Ishar Das was divided into several separate mahals. The property sold fell within one of the mahals shown as mahal Ganga Prasad. In that mahal neither the plaintiff nor the vendees owned any share, and it was not until 1896 that the suit for pre‑emption was brought. In these circumstances, it was held that as the plaintiff had ceased to be a co‑sharer as a result of the collectorate partition at the date of the suit, that suit could not be maintained by him. The principle underlying this case is quite intelligible. The_ right of pre‑emption arises as between a co sharer and a stranger. If the co‑sharer ceased to be a co‑sharer before the suit is decided, he loses the very right upon which a suit for pre‑emption can be founded, and he, therefore, cannot oust the stranger purchaser from the property purchased by him. The same consequences follow, if before the decision of the suit the stranger purchaser becomes a co‑sharer by reason of an undisputed purchase or gift from another co‑sharer. In the present case neither of these events has happened. Here the appellant brought the suit for partition on the strength of his having purchased two an as from a brother of the plaintiff, that is to say on the strength of the very transaction which was in question in the pre‑emption suit. The pre‑emption suit being decided in favour of the plaintiff, the property became his property, and as the appellant ceased to have a share in the estate he was no longer entitled to continue the partition proceedings. I do not see how, in these circumstances, the mere fact that the appellant had a prelimi nary decree for partition in his favour can help him. The preliminary decree in a partition suit merely amounts to adjudication that the plaintiff is entitled to a separate share in the property sought to be partitioned. If, however, before the share is separated the plaintiff ceases to have a right in that property, his suit must automatically fail. In my opinion, therefore, instead of the decree in the partition defeating the right of the plaintiff, it was the appellant who lost his right to partition as a result of the pre‑emption decree." Respectfully adopting the said view, I hold, firstly, that the authorities cited by the learned counsel for the vendee‑appellant have no relevancy to the facts and the circumstances of the present case; because those were cases of partition of holdings, whereas the present is a case of consolidation of holdings‑a process diagonally opposed to the first; secondly, all that these cases lay emphasis is on the loss of the preferential qalification rather than on the nature or the replacement of the erupted property and, thirdly, the proposition enunciated therein cannot be applied indiscriminately in all cases of partition Even there, there will have to be made two or more classes of cases with regard to the fact as to when a decree for parti tion is made and when a suit for pre‑emption is filed and what steps in each case the respective parties have taken to preserve their rights. 5.The upshot of the above discussion is that in the instant case the right of the plaintiff‑pre‑emptor was not lost merely because consolidation proceedings had taken place in the village. A plain tiff''‑pre‑emptor in a case like this, where it is established as to which land the vendee has got in lieu of his old land can follow the new land in the hands of the vendee] if otherwise he retained the qualification of a preferential pre‑emptor. In the present case, the plaintiff claimed pres M emption on the basis of being a co‑owner in the patti. If this qualification was fulfilled, then the plaintiff will not lose hi, right; because his case is that the new land still exists in the same patti in which the old land was and in which he was still the owner.

6. The second point argued by the learned counsel for the vendee‑appellant was that the plaintiff‑pre‑emptor has waived his right of pre‑emption in the instant case. There is no force in this contention. The utmost that has been proved in this case is that the plaintiff‑pre‑emptor refused to purchase the property at a price which was then demanded by the vendor. The evidence of the three witnesses produced by the vend par‑appellant is that when Nawab Khan vendor wanted to sell the land, he made an offer of the same to the plaintiff‑pre‑emptor at a sum of Rs. 6,000 but that the plaintiff‑pre‑emptor refused to purchase, as according to him, the price demanded by the vendor was very high. It is abvious that such a conduct does not amount to a waiver. It is to be noticed that the land was later on sold to the vendee appellant for a sum of Rs. 5,000, which it is vendee's own case was fixed in good faith and was actually paid. If this is so, then the plaintiff‑pre‑emptor was justified in refusing to purchase it at a higher price. It is well‑settled that mere refusal to purchase at a higher price or making offer to purchase at a sum lesser than N the one demanded by the seller, does not amount to waiver. This proposition is quite sound, but if authority be needed reference can be made to Mst. Shakro and another v. Molar Mal and another (68 P R 1879), Phulel v. Buta and others (52 P R 1880), Ramsukh Das v. Fazal ud‑Din and others (19 P R 1898), Karam Chand and others v. Ghulam Hassan and others (74 P R 1915) and Natha Singh and others v. Sunder Singh and others (A I R 196 Lab, 19). There is no evidence worth the name in the instant case that after the refusal of the plaintiff‑pre‑emptor to pay a sum of Rs. 6,000, the land was again offered to him at a lesser price or at a price of Rs. 5,000, which is the price which now is being claimed as ‑the bona fide price of the land. The fact that after first deman ding Rs. 6,000 from the plain tiff‑pre‑emptor, the sale was, in fact, later on made for a sum of Rs. 5,000 itself shows that the plaintiff pre‑emptor was justified in disputing the price then demanded and his refusal to pay that price was bona fide and quite genuine and would not amount to waiver.

7. The last point urged by the learned counsel for the vendee appellant was that the plaintiff‑pre‑emptor based his right of pre‑emption on the ground of his being an owner in the taraf Patti, or the sub‑division in which the land in dispute was situated. He argues that in the written‑statement the vendee‑appellant had taken up the position that there were no regular tarafs, Patti's or sub‑divisions (within the meaning of the Pre‑emption Act in the village). The learned counsel argues that on these pleadings, the learned trial Court should have framed a specific issue as to whether there were regular tarafs, patti or sub‑divisions in the village. He says that failure to frame such a specific issue has led to a miscarriage of justice and has caused a great prejudice to the vendee‑appellant; because he could not lead proper evidence on this point. He argues that the Courts are not to invent sub division but are to determine whether there are recognised sub divisions or not. The mere mention of the word "Patti", "taraf", or "zail" etc., in the revenue records is not enough. He says that there must be well‑defined and well‑recognised attributes to justify a section of a village as a sub‑division. For these proposi tions, he refers to Kishen Singh v. Jai Kfshen Das (2 P R 1903), Bhagat Hira Nand and others v. Lal Khan (169 P R 1889), Utam v. Buta and others (69 P R 1893), Sadda and others v. Majja Singh (76 P R 1894), Bija v. Bishan Singh and others (45 P R 1897), Ram Partap v. Kishan Singh (A I R 1937 Lab. 32), Raja Painda Khan and others v. Kahan Singh and others (A I R 1937 Lab. 703), Pakhar Singh v. Labhu Ram and another (A I R 1947 Lab. 322), Fauja Singh and others v. Chanan Singh and others (A I R ) 951 Simla 182) and Gul Muhammad and others v. Sadar‑ud‑Din and others (P L D 1951 Lah. 437). There is no dispute regarding the law on the subject regarding tarafs, patti's and sub‑divisions. The main question to be seen is as to whether any issue was framed about the same or not. In Paragraph 3 of the plaint, the plaintiff claimed right of pre emption on the basis of (a) being a co‑sharer in the Khatha and (b) being a co‑sharer in the path or the sub‑division. Both these claims were denied by the defend ant‑vendee and the issue which was framed was a comprehensive issue reading as follows:‑ "Whether the plaintiff's right to pre‑empt is superior qua vendee, vide ground given in Para. No. 3 of the plaint? (O. P.)." This issue covered both the basis on which the pre‑emption was claimed and to say that the defendant was not aware of the basis of the Patti's or sub‑divisions is not correct. Before the trial Court, when the case was argued towards the close of the, evidence, no argument seems to have been raised about the' ambiguity of any issue or failure to frame any issue because such a point is conspicuous by its absence in the judgment of the trial Court. I have gone through the memo. Of appeal filed before the learned Additional District Judge and a perusal of this document shows that there is no ground complaining non‑framing of the issue of the kind, which is now being suggested. Luckily, in the lower Appellate Court's file, there are four sheets containing notes of the learned Additional District Judge regarding the arguments raised before him. In that also, there is no complaint about non‑framing of any specific issue on this point. A perusal of the cross‑examination as may by the defendant‑vendee, on the witnesses of the plain tiff‑pre‑emptor, shows that he was aware of this point and even a question was put regarding the boundaries of the patties to P. W. 2 Rahmat Ali. The plaintiff had himself deposed about the Patti taraf Amir Khan and of his being a co owner in the same. He has filed Exh. P. 1 which is a copy of pedigree‑table of the owners of Taraf Amir Khan. In that pedigree‑table, existence of Taraf Patti Amir Khan is duly mentioned and the same was supported by the oral evidence of P. W. Rahmat Ali the Patwari as well as Exhs. P. 2 and P.

3. In these circumstances, it is not correct to suggest that the vendee appellant was not aware of the point of patties or that he did not know the same. The issues framed by the learned trial Court were quite in accordance with law and there was nothing wrong in them. It appears to me that it is only for the first time in the course of this appeal that this argument has been advanced and as it is neither based on good faith nor is otherwise maintainable, 1 have no option but to reject it.

8. Coming to the subject of the existence of pattis it is laid down in some of the authorities already quoted that the Court is not to invent tarafs, pattis, or sub‑divisions, but is simply to see as to whether there are recognised sub‑divisions or not. The p evidence led in this case establishes that Patti Amir Khan i: recognised Patti, sub‑division and taraf in the village. It is laid down in Fauja Singh and others v. Chanan Singh and others, that the question whether a particular village comprises of recognised sub‑divisions is a question of fact and is not open to challenge in a second appeal. Taking the same view, I hold that since the findings of both the Courts below are that the plainiff pre‑emptor is a co‑owner in the Patti, taraf, sub‑division Amir Khan, whereas the defendant‑vendee is not, this finding is not open to challenge in this appeal. This finding is based on proper evidence in the form of Exhs. P. 1, P. 2, and P. 3, which confirm the existence of this Patti. Coupled with them, is the statement of the plain tiff‑pre‑emptor and the Patwari. Nothing has been shown to me, which should induce me to discredit the aforesaid evidence. Merely because another view may also be possible is no ground to interfere in a second appeal and nor is the fact that for arriving at such a conclusion certain documents which are not documents of title have been considered or taken note of, as was laid down by the Privy Council: Wali Muhammad and others v. Muhammad Bakhsh and others (1 L R 11 Lab. 199) the head note of which reads as follows: "A decision of fact by a first Appellate Court does not involve a question of law so as to be open to reconsideration upon second appeal under section 100 of the Code of Civil Pro cedure, 1908, merely because documents, which were not instruments of title, or otherwise the direct foundations of rights, have to be construed for the purpose of deciding the and question."

9. Respectfully following the above law, I hold that the findings as to whether the plaintiff is a co‑owner in the Taraf Amir Khan is a finding of fact and cannot be disturbed.

10. No other point was argued before me.

11. The result is that this appeal has no merits and is hereby dismissed with costs throughout. A. H. Appeal dismissed.