1994 PLP 2268 (CLC)

Date of hearing: 4th June, 1994. This civil revision was directed against the judgment dated 16‑10‑1985 whereby the learned District Judge, Sargodha set aside the judgment and decree dated 3‑6‑1985 decreeing the suit filed by the petitioners, and consequently dismissed the suit recording the conclusion that right of pre‑emption is inheritable only if the suit is instituted and the pre‑emptor dies during the pendency of the suit.

2. In the instant case, sale of the land took place vide registered sale deed dated 11‑3‑1980. Muhammad Suleman, father of the petitioners‑pre‑emptors was admittedly alive at the time of sale as he died on 21‑12‑1980. The petitioners filed the pre‑emption suit on 10‑3‑1981 on the basis of ownership of land inherited by them from their father ‑ on his death which took place on 21‑12‑1980. The learned trial Court granted the decree holding that the pre‑emptors on account of inheritance of the said land were possessed of superior right of pre‑emption. This finding was reversed by the learned appellate Court which was of the view that the pre‑emptors admittedly being not possessed of any superior right of pre emption on the date of sale, cannot successfully pre‑empt the sale in question.

3. Learned counsel in support of the revision petition placed reliance on Faqir Ali Shah v. Ramkishen and others (No. 133 Punjab Record 1907) and Allah Dad and another v. Hukam Dad and others (PLD .1960 (W. P.) Lahore 900) and contended that a right to sue for pre‑emption upon a cause of action which accrued to a person in his lifetime passes at his death to his successors who inherit the property through which right had accrued. He added that since right of pre‑emption passes with the land to the person who inherits the land, he should also be able to exercise that right. In other words, learned counsel contended that it was a heritable right. 4.. The aforesaid view expressed in the case of Faqir Ali Shah (supra), was not followed by erstwhile High Court of Lahore in the case of Faiz Muhammad v. Chaudhary Fajar Ali Khan and another (AIR 1944 Lahore 172). ‑ Even Allahabad High Court in the case of Chhajju and others v. Jai Dayal and others (AIR 1947 Allahabad 297) expressed the contrary view. In another case, namely, Abdul Khaliq v. Abdul Ghani (PLD 1969 Lahore 219), it was held that the view expressed in the case of Allah Dad and another v. Hukam Dad and others (PLD 1960 (W.P.) Lahore 900) is not applicable. This controversy stands settled by judgments of the Supreme Court in the following cases:‑‑ (1) Akram v. Mst. Sakina Begum and another (PLD 1984 Supreme Court 334). (2) Aziz ur Rehman and others v. Muhammad Nawaz (PLD 1988 Supreme Court 384). (3) Muhammad Ayub v. Ghulam Hussain (1989 SCMR 1078) In this view of the matter, no exception can be taken to the view followed by the learned District Judge. The revision petition, thus, fails and is hereby dismissed with no order as to cost as none has entered appearance on behalf of the respondents. A.A./M‑1727/L Petition dismissed