P L D 1963 (W (PLP)

Mst. Mehr Jan, widow of Jaffar, Mst. Hussan Zadgai, and Mst. Wazir Sultana, daughters of Akbar Khan, (defendants 1‑3) of village Agra, were the owners of agricultural land measuring 18 kanals 3 marlas, out of 93 kanals 12 marlas, specified in the plaint, situated in the area of village Agra. They sold it to Abdul Hamid (defendant 4) by a sale‑deed executed on 16‑1‑1954 and registered on 15th February 1954, (copy Exh. D. A.) ostensibly for Rs. 3,

000. Abdul Malik plaintiff pre‑empted the sale by instituting Suit No. 109 on the 1st of March 1954, in the Court of Sub‑Judge, Charsadda. During the pendency of the suit, Abdul Hamid re‑sold this land to his father Abdul Jabbar by a sale‑deed dated the 13th of March 1954 and registered on the 20th of March 1954. (Exh. D. B.) for Rs. 3,

000. In this sale‑deed it is specifically mentioned that Abdul Jabbar was co‑sharer in the khata of the land in suit and he was intending to pre‑empt the sale in favour of Abdul Hamid, and the latter, in acknowledgement of the superior right of pre‑emption of the former, had re‑sold it to him. Fazal Nabi and Muhammad Nabi, the two minors, also instituted a suit on the 31st of March 1954, for possession of 11 kanals 17 marlas out of 18 kanals 3 marlas of land sold by the above‑named vendors to the vendee by cancellation of the sale, and for possession by pre‑emption of the remaining 6 kanals 16 marlas of land, and in the alternative, they claimed possession by pre‑emption of the whole area of the land sold by the three ladies in favour of Abdul Hamid. The two suits were consolidated. Abdul Jabbar, in whose favour Abdul Hamid bad re‑sold the land was already impleaded as a defendant. After recording the evidence for the parties the. learned trial Judge dismissed the suit of Fazal Nabi and Muhammad Nabi on the ground that they could not pre‑empt this sale as the first vendee had re‑sold this land to Abdul Jabbar prior to the institution of their suit, which was barred; under section 17 of the N.‑W. F. P. Pre‑emption Act, 1950. Their claim for possession on the basis of title was also disallow as they could not prove their title to any part of the land.

2. Abdul Malik plaintiff of cross‑suit was found to be owner of contiguous land, and since Abdul Jabbar purchase this land during the pendency of his suit, therefore, althou he had a superior right of pre‑emption, but the transfer in favour was found to be hit by the doctrine of lis pendens the fore, Abdul Malik was granted a decree for possession by p emption of the suit land on the 13th of April 1957. The appeals arose out of the decision of the learned trial Court those suits. One of them was lodged by Abdul Jabbar vendee in whose favour Abdul Hamid had re‑sold the land. The second appeal was lodged by Fazal Nabi and Muhammad Nabi against the dismissal of their own suit. The third appeal was lodged by Fazal Nabi and Muhammad Nabi against the decree pas in favour of Abdul Malik. These appeals were decided by Additional District Judge, Peshawar (Khan Sher Bahadur Khan He accepted the appeal of Abdul Jabbar and dismissed the s of Abdul Malik also. He dismissed both the appeals of Fazal Nabi and Muhammad Nabi. He recorded consolidated judgment, in all the three appeals on the 23rd of April 1959. Abdul Ma has preferred a further appeal in this Court, which is being treated as a revision petition by virtue of subsection (4) section 59 of Ordinance XLIV of 1962.

3. Before proceeding further it is necessary to consider finding of the learned Appellate Judge on the material points which the decision of the appeals was based. The lean Appellate Judge found in para. 9 to the following effect :‑ In the present case the purchaser Abdul Hamid had pr to the institution of the suit of Fazal Nabi and Muhammad Nabi transferred the land in dispute to his father Abdul Jabbar who decidedly had an equal right of pre‑emption to that plaintiffs Fazal Nabi and Muhammad Nabi. The transfer his favour is, therefore, protected by section 17 of the Act. As regards the suit of Abdul Malik, it cannot be denied that it was brought before this transfer was affected by Abul Hamid in favour of his father, but then Abdul Malik 1 inferior right to Fazal Nabi and Muhammad Nabi, as against whom his case is bound to fail and therefore he on no account can succeed to get the land in suit by way of pre‑emption." In paragraph I1 under discussion of issue No. 3 the learned Judge further remarked in the following words :‑ Abdul Malik could not claim the suit land as against Fazal Nabi and Muhammad Nabi and therefore he being out Court the right of Abdul Jabbar, Fazal Nabi, and Muhammad Nabi inter se had to be compared. The learned Sub‑Judge in this connection has come to the conclusion that the transfer in fav4 of Abdul Jabbar by his son Abdul Hamid was made during pendency of the suit of Abdul Malik and therefore the right Abdul Malik would not in any way be effected. I agree with t in coming to this conclusion for the reason that section 17 the pre‑emption Act only protects the right of those persons where the purchasers had prior to the institution of such suit transferred the property in dispute to a person having a right of pre‑emption equal or superior to that of the plaintiff. If the intention of the Legislature was to protect even the right of those where the transfer was made after the institution of the suit, then it should not have in so many words limited the scope of the section to purchases made prior to the institu tion of the suit. 1, therefore, uphold the finding of the learned Sub‑Judge on this issue, but for reasons given in connection with issue No. I hold the sale in favour of Abdul Jabbar an unassailable transaction.

4. Section 17 of the N.‑W. F. P. Pre‑emption Act, 1950, provides no suit for pre‑emption shall lie where the purchaser has, prior to the institution of such suit, transferred the property in dispute to a person, having a right of pre‑emption equal or superior to that of the plaintiff. This section, therefore, non‑suited Fazal Nabi and Muhammad Nabi. In other words, section 17 created a disability against Fazal Nabi and Muhammad Nabi from instituting the pre‑emption suit, although, according to section 12 of the Pre‑emption Act, they had a superior right of pre‑emption, because of their being co‑sharers. When Fazal Nabi and Muhammad Nabi had no right to institute a pre‑emption suit, in spite of the fact that they were in possession of the requisite qualities then this provision would not debar any other person who had a right of pre emption inferior to Fazal Nabi and Muhammad Nabi to success fully pre‑empt the sale. On this ground, therefore, the lower appellate Court was not correct and had committed a legal error. Each one of the pre‑emptors sues on his own independent right, and if a pre‑emptor having equal or superior right to the other, Who is under a disability to institute a suit for pre‑emption, it per se cannot create the disability, as against the other.

5. In spite of this erroneous view taken by the appellate Judge, I think this revision petition must fail on other grounds. A perusal of the sale deed, dated the 13th of March 1954, Executed by Abdul Hamid, in favour of his father, Abdul Jabbar, would clearly show that Abdul Hamid had expressly stated therein that he was selling this land to Abdul Jabbar, because the latter was prepared to bring a suit for pre‑emption, and that his right of pre‑emption was superior. Similar are the statements of Abdul Hamid and Abdul Jabbar at the trial when they were being examined as their own witnesses. It is, therefore, abundant established that Abdul Hamid sold this land to his father who wanted to purchase it in exercise of his right of pre‑emption and Abdul Hamid had privately acknowledged his superior right of pre‑emption and sold it to him in consequence thereof. It is now almost settled that the principle of lis pendens provided in section 52 of the Transfer of Property Act is not applicable to such a sale and the pre‑emptor would only succeed if his right is superior to the person to whom the land was re‑sold. In Thakur Madho Singh and another v. Lt. James B. R. Skinner and another (A I R 1941 Lah. 433), it has been clearly laid down that "a re‑sale by the vendee in favour of a person possessing equal rights to the pre emptor, thus leading to a dismissal of the pre‑emptor suit is valid. "Similarly in Mool Chand and others v: Ganga Lal and others (A I R 1930 Lah. 356), it has been held that "no doubt the rule of lis pendens applies to pre‑emption suits but it does not affect the validity of the sale affected by the vendee during the pendency of the pre emption suit to a person possessing right of pre‑emption equal to that of the pre‑emptor." In Mustaqim Khan v. Abdullah Khan and others (P L D 1951 Pesh. 1) and Musali Khan v. Nazir Ahmad and others (P L D 1952 Pesh. 1) the same principle was upheld. No doubt Fazal Karim v. Muhammad Karim (A I R 1942 Pesh. 43), contained the opposite view but this was dissented in a subsequent judgment reported in P L D 1951 Pesh.

1. The latest precedent is found in a case Bahram Khan v. Sher Akbar and others (P L D 1960 Pesh. 1). In paragraph 9 of this judgment it has been clearly laid down that :‑ "In section 16 of the North‑West Frontier Province Pre emption Act of 1950, there is permission to the vendee to divest the pre‑emptor of his right of pre‑emption by acquiring even after the institution of his suit a right equal or superior to the plaintiff‑pre‑emptor. If he is able to place the plaintiff in a position to show that he has not a subsisting right of pre‑emption at the time of the decree he can prevent a decree from being passed in plaintiffs' favour. The plaintiff pre emptor falls under that disability Firstly, if the vendee improves his own position as against the pre‑emptor by placing himself in the same category of pre‑emptors with him, and Secondly, if the vendee places in opposition to the plaintiff another person who stands in the same category of pre‑emptors with the plaintiff‑pre emptor." The learned Judge, while interpreting section 16 of the N.‑W. F. P. Pre‑emption Act had remarked,‑

"on the language of section 16, it is permissible to the vendee to create a situation from which it may be open to him to say that the pre‑emptor has lost his title to the decree against one of the defendants in the case. By transferring the pre‑empted land to another pre‑emptor and arraying him amongst the defendants the vendee can place the first pre‑emptor in that situa tion. If by that device he can deprive him of his right he can do so even after the institution of the suit, but before passing of the decree. There is no prohibition against the employment of this device in section 17 of the North‑West Frontier Province Pre‑emption Act, 1950. If a person with right of pre‑emption equal to the plaintiff‑pre‑emptors is brought into litigation against him during the pendency of the suit, the plaintiff‑pre emptor's right of pre‑emption will no doubt cease to subsist against him. He will be unable to enforce his right against him because he will not be entitled to any preference over him. So far as the language of section 16 goes it permits the vendee to defeat the pre‑emptor's right not only by improving his own status against him during the pendency of the litigation but also permits him to bring into the litigation another person possessing a right equal with or superior to the pre emptor."

6. It is conceded that sections 16 and 17 of the N.‑W. F. P. Pre‑emption Act, 1950, are analogous to sections 19 and 20 of the Agra Pre‑emption Act, 1923. Although in the beginning the Allahabad High Court had been holding different views, but the latest authorities, favour the view that when a vendee re‑sold the property to a person who had got equal or superior right of pre‑emption, during the pendency of the suit, the transfer would not be hit by the principle of lis pendens, and this device would be quite legitimate, which may entail the dismissal of the plaintiff's suit. Heer Keshi v. Mawa Ram and others (A I R 1923 All. 294) lays down that "al subsequent transfer by vendee even in favour of a co‑sharer of equal degree with the pre‑emptor defeats the latter's right."

7. The result of the above discussion is that under the law Abdul Hamid was competent to re‑sell the land to Abdul Jabbar, his father, who had a superior right of pre‑emption to Abdul Malik pre‑emptor, and this re‑sale during the pendency of the suit, would deprive the pre‑emptor of a subsisting right of pre‑emption C at the time of the decree as contemplated by section 16 of the N.‑W. F. P. Pre‑emption Act, 1950. The judgment and decree of the learned appellate Court, are, therefore, upheld, though on different grounds, and the revision petition is dismissed with costs. K. B. A./A. H. Petition dismissed.