2000SCMR713 (PLP)

MUNIR A. SHEIKH, J.

This petition for leave to appeal is directed against the judgment, dated 18-3-1998 of the Lahore High Court, Bahawalpur Bench through which RSA No.588 of 1977 filed by the petitioner has been dismissed.

2. The facts giving rise to this petition briefly stated are that Muhammad Abbas and another sold land in dispute through Mutation No.83 sanctioned on 30-12-1969 to .Dara, respondent No.2 for an amount of Rs.6,

500. Respondent No. 1 Qutub Din on 22-10-1970 filed a suit to pre empt the said sale on the ground that he was collateral of the vendor, joint owner in the khata and owner in the estate. During the pendency of the suit, Data vendee sold the land to the present petitioner Mst. Bakhshai who was already tenant over the said land. On the promulgation of Land Reforms Regulation, 1972 (MLR 115), under para. 25 thereof, the first right of pre emption was created in favour of the tenant qua the land comprising his tenancy. On this basis, Mst. Bakhshai, the subsequent vendee claimed that she having been conferred superior right of pre-emption as compared to pre emptor with effect from March, 1972, as such, the pre-emptor having failed to keep and maintain his superior right of pre-emption up to the date of final judgment by the trial Court, therefore, his suit was liable to be dismissed.

3. The trial Court repelled the contention and the suit of respondent No. 1 was decreed through judgment, dated 3-11-1976 against which' appeal filed by petitioner No. l and respondent No.2 was dismissed through judgment, dated 8-7-1977 by the learned Additional District Judge, against which second appeal (RSA (No.588 of 1977) filed by the petitioner has also been dismissed through the impugned judgment, dated 18-3-1998, against which leave to appeal has been sought. '

4. Learned counsel for the petitioners reiterated his argument as advanced before the Courts below that the pre-emptor was required to maintain his superiority as regards rights of pre-emption at three stages; i.e., on the date of sale, on the date of institution of the suit and uptil the date of final judgment by the trial Court. The sale by vendee Data made in favour of Mst.Bakhshai though was made much prior to the conferment of superior right of pre-emption under MLR 115 of 1972 on her but from the said date, she would be deemed to have superior right of pre-emption qua the plaintiff, therefore, the plaintiff could be non-suited as he could be held to have failed to continue holding superior right of pre-emption at the abovementioned three stages. '

5. The contention in' our considered view is not only wholly misconceived but also unsound. The sale by Data, vendee in favour or Mst. Bakhshai on 23-10-1970 was rightly held to be not in recognition of her superior right of pre-emption qua the plaintiff, for on the said date, she did not have right of pre-emption superior to the plaintiff as tenant under the law. It was also rightly held that it was ordinary sale made during the pendency of the suit. Immediately on the purchase of the land from the vendee, she had lost her status of tenant even and it has been rightly so held by the Courts below, for the status of tenant merged into the superior status of full owner of the land. She could not be the tenant in the land of herself after having become owner of the land through purchase, therefore, on the promulgation of MLR 115 of 1972, she was not holding the land as tenant, therefore, the very basis that she had superior right of pre-emption as tenant over the land in dispute with effect from the said date was wholly misconceived. Apart from this, section 21-A of the Pre-emption Act 1913 provided that during the pendency of the suit, the only improvement permissible in the status by the vendee to defeat the right of pre-emption of the plaintiff is by way of inheritance and not otherwise. If the original vendee Dara could not improve his status in any way other than the inheritance, he could not by sale of the land during the pendency of the suit confer on his transferee a better right as regards improvement of status.

6. The Courts below, therefore, have rightly repelled the claim of the petitioners that the petitioner had acquired right of pre-emption in 1972 as tenant of land in dispute by purchasing the land in 1970, for with the purchase of the land, her status as tenant even was lost.

7. For the foregoing reasons, this petition has no force which is accordingly dismissed and leave to appeal refused. M.B.A./B-3/S Petition dismissed.