P L D 1962 (W (PLP)

(6) Whether in case of decree defendant No. 1 is entitled to recover Rs. 200 over and above the sale price on account of registration of the sale-deed ? (7) Relief.

3. It is important to observe here that the vendee did not raise any plea in the written statement to the effect that he had purchased only two khasra numbers and that Khasra No. 3185 had never been sold to him.

4. The learned trial Court, by its judgment dated 29th June 1961, dismissed the plaintiff's suit, as a result of decision of issue No. 3 against the plaintiff to the effect that the plaintiff had not been able to prove preferential right in respect of Khasra No. 3185 in that he did not own any land contiguous to that Khasra number, though he owned land contiguous to the other Khasra numbers, and since the vendee would be left with Khasra No. 3185 he would be a co-sharer in the khata in which the three khasra numbers were situated, and as such, the plaintiff had no superior right of pre-emption as against the vendee.

5. The plaintiff feeling aggrieved took appeal to the District Judge. The case came up for hearing before Khan Amir Zada Khan, Additional District Judge, Peshawar, and on 19th December 1961 Niaz Gul vendee gave an application to the Additional District Judge; ` praying that he should be permitted to prove the registered exchange deed dated 14th December 1961 under which he had got in exchange Khasra No. 3185. In other words, Niaz Gul vendee impliedly admitted that he had not originally purchased Khasra No. 3185.

6. It was argued before the learned Additional District Judge that as the vendee had improved his title during the pendency of the appeal the plaintiff-appellant's appal should fail. This argument, however, did not find. favour with the learned Additional District Judge, who, on the strength of decision of a Full Bench of the Lahore High Court in Zuhur Din and another v. Jalal Din and others (A I R 1944 Lah, 319), held that the vendee could not improve his status during the pendency of appeal and that the crucial-time for determining of the rights of the parties to the pre-emption suit was the date of adjudica tion by the trial Court. In the result, the learned Additional District Judge by his order dated 5th January 1962, accepted the and against the appellant in that, in my view, the question stands concluded by the decision of the Full Bench of Lahore High Court in Zahur Din and another v. Mal Din and others.

12. Precisely the very same question came up for deci sion in the Full Bench, and Abdur Rahman, J. (as his Lordship then was) delivering the main judgment, after exhaustive review of the case-law, answered the question in the negative, at page 323, his Lordship observed as follows :- "Nothing has been said at the Bar or otherwise brought to light that will enable me to agree to the proposition that not only should a vendee be allowed to defeat the pre-emptor during the pendency of the suit but also during the pendency of an appeal either in this country or even outside. It seems to be essential that a line should be drawn at some stage when the race between a pre-emptor and a vendee ought to come to an end and after leaving the well known land mark of the date of the sale behind-as we now must-the farthest limit that can be granted to a vendee is that of `at any time before the adjudication of the suit'. I can really go no further." His Lordship summed up the discussion as follows :-- "I am thus of opinion that it is not possible to extend the date by which a vendee can improve his status beyond the date of the adjudication of the suit by the Court of first instance and he cannot, therefore, by improving his position during the pendency of an appeal defeat the pre-emptor whether the decree of the first Court is rightly in the latter's favour or erroneously against him. I refrain, however, from express ing any opinion as to what would happen if a pre-emptor is non-suited by an incorrect decision of the trial Court on a question such as that of court-fee or of limitation and the suit is finally remanded by an appellate Court to be gone into and decided on its merits. It must be remembered, however, that in the present case the trial Court's decree which was on the merits of the pre-emptor's claim had not been vacated by the Additional District Judge at the time of the remand and the trial Court was called upon to decide the other issues originally framed by it and to submit its findings to the Court of appeal. The vendee had thus improved his position during the pendency of the appeal and not before the rights of the parties had been rightly or wrongly adjudicated on their merits by the Court of first instance. I would, for the above reasons, answer the question referred to us for decision in the negative and direct the costs incurred in this, proceeding to be the costs in the causes."

13. The above decision would be sufficient to render this appeal as unmeritorius, but I would pursue the dis cussion a little further and examine the -following three authorities :- (1) Mst. Qudrat-un-Nissa Bibi v. Abdul Rashid and another reported as A I R 1926 All, 661 (2) Ram Saran Das v. Bhagwat Prasad and another reported as A I R 1929 All. 53. (3) Hans Nath and others v. Ragho Prasad Singh reported in AIR 1932PC57.

14. It is important to observe here that in all the three aforesaid authorities the interpretation of the provisions of section 19 of the Agra Pre-emption Act, which is analogous to section 16 of .the N.-W. F. P. Pre-emption Act was involved. In the first noted authority, Sulaiman, J. as His Lordship then was, summed up the position in the following words :- "In our opinion the true interpretation of section 19 is that the plaintiff must possess a subsisting right at the time when the decree is passed by the first Court. His loss of that right subsequent to that decree would, however, in no way be prejudicial to him." In the second case, which was-a Full Bench decision of the Allahabad case at page 58 King, J. summed up the discussion in regard to interpretation of section 19 of the Agra Pre-emption Act, in the following words :- "The next question is whether section 19 defeats the plain tiff's right to a decree. I think it clearly does. At the time of passing the decree the plaintiff had no subsisting right of pre-emption because the purchaser had by that time acquired a pre-emptive status equal or superior to that of the plaintiff. To my mind it is clear: that section 19 enacts the old rule that the plaintiff cannot get a 'decree unless he shows a subsisting right of pre-emption at the date of the decree. I think the expression `subsisting right of pre-emption' must be under stood in the sense in which it was understood before the passing of this Act. The plaintiff may lose his right in a variety of ways, and one way is by the purchaser's acquisition of an interest which puts him on the same level as the plaintiff in respect of the right of pre-emption. It may be considered hard that the plaintiff should be defeated by the purchaser acquiring such an interest after the institution of the suit, but this was the old rule and I have no doubt but that section 19 enacts the same rule. I express no opinion on its justice or expediency. , I am in full agreement with the interpretation put upon section 19 in the case of Qudrat-un Nissa v. Abdul Rashid A I R 1926 All. 661 which has been followed in the case of Ram Khelawan v. Banke Behari A 1 R 1927 All. 517 and Deonarain Singh v. Ajudhia Prasad A I R 1927 All.

575. I agree that the reference should be answered in the affirmative in respect of section 19 and in the negative in respect of section 20." In the last case, their Lordships of the Privy Council while considering the interpretation of section 19 of the Agra Pre-emption Act ruled that "the decisive date as regards the- rights of the co-sharer to pre-empt is the date of the decree,"

15. It follows from the above authorities that the term `subsisting right' within the meaning of section 16 of the N.-W. F. P. Pre-emption Act means that the pre-emptor should have a superior right of pre-emption at the date of adjudication by the trial Court and that subsequent improvement by the vendee or loss of qualification by the vendee would not in any way affect the rights of the parties.

16. As a result of the above discussion, the appeal fails and is hereby dismissed with costs to the respondents. K. B. A. Appeal dismissed.