2000 PLP 1345 (CLC)

Mian Habibur Rehman Ansari for Appellant. Ijaz Ahmad Bhatti for Respondents. Date of hearing: 28th March, 2000. The respondents purchased the suit land from their sisters namely, Mst. Rajan and Mst. Jannat for a consideration of Rs.20,000 vide registered sale‑deed, dated 26‑1‑1967. The appellant claiming to be the son of Mst. Jannat and nephew of Mst. Rajan filed a suit for possession of the suit land by pre‑emption. The respondents resisted the suit. Issues were framed and evidence of the parties was recorded. The learned trial Court found that the appellant being the son of Mst. Jannat had a superior right of pre‑emption against the vendees qua the land sold by the said ladies but since the vendees were brothers of Mst. Rajan, he was held to have no superior right qua the land sold by Mst. Rajan. Consequently, the suit was decreed to the extent of half share of suit land on payment of Rs.10,000 vide judgment and decree, dated 23‑2‑1973. Both the parties tiled separate appeals against the said judgment and decree which were heard together by the learned District Judge, Multan who dismissed the appeal of the appellant but allowed the appeal of the respondents vendees and consequently, dismissed the suit of the appellant vide judgment and decree, dated 4‑3‑1978. 2.Learned counsel for the. appellant argues that the impugned judgment of the learned District Judge is contrary to law. Learned counsel for the respondents‑vendees has tried to support the impugned judgment and decree.

3. I have gone through the record. I find that the learned District Judge has propounded rather a strange proposition by holding that even if a pre emptor . is found to have a superior right of pre‑emption qua a part of the A property then the decree cannot be granted unless and until the sale is held to be divisible. He has relied upon the case of Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140 which is a landmark judgment on the principle of sinker. However, the learned District Judge has rather applied the law laid down in the said judgment in reverse. The Supreme Court of Pakistan in the said judgment and several other judgments following had laid down the law that in case there are more than one vendees and one or more of them. have a right superior to or equal to the pre‑emptor, shall loose the same if they join a stranger with them unless and until it is to be pleaded and proved that the sale was divisible. Criteria to determine the divisibility of sale was also laid down. However, the said judgment by no stretch of imagination can be held applicable to the case of a pre‑emptor whose superior right extends only to a part of land. In fact in another landmark judgment on the question of partial pre‑emption in the case of Ghulam Muhammad and 3 others v. Khushi Muhammad and another PLD 1973 SC 444 the first exemption provided in the matter of partial pre‑emption is that where a pre‑emptor's right extends only to a part of land he is absolved from suing for whole of it.

4. Right of pre‑emption is a right of substitution. The effect of the pre emption decree upon fulfilment of its conditions is that the pre‑emptor substitutes the vendees to the extent of his superior right. In the present case the pre‑emptor will be substituted for the vendees to the extent of 1/2 sharel8 of land sold by his mother Mst. Jannat regarding which it has been concurrently held by the two Courts below that he has superior right of pre emption. I do agree with the learned counsel for the appellant that the impugned judgment of learned District Judge is contrary to law. This regular second appeal is accordingly allowed. The judgment and decree, dated 4‑3‑1978 of the learned District Judge, Multan is set aside while that dated 23‑2‑1973 of the learned trial Court is restored. The suit of the appellant/plaintiff shall stand decreed to the extent of 1/2 of the suit land on payment of Rs.10,

000. This amount shall be deposited by the appellant in the trial Court on or before 31‑5‑2000 subject, of course, to adjustment of 1/5th or any other amount which he might have already deposited. In case details to make the deposit on or before the said date, his suit shall stand dismissed with costs. For the moment the parties are left to bear their own costs. H.B.T31‑10/L Appeal allowed.