1969L33 (PLP)

Faiz Mohammad v. Ch. Fajar All Khan and another A I R 1944 Lah. 172 and Chajju and others v. Jai Dayal and others A I R 1947 All. 297 rel. A. K. Dogar for Appellant. Date of hearing: 14th November 1968. This is plaintiff's second appeal arising out of a suit for the pre‑emption of land measuring 7 kanals 16 marlas situate in Ghazi Manara, Tehsil and District Sheikhupura. The land was sold to Abdul Ghani, respondent herein, by means of registered sale‑deed dated 29‑9‑1966, for Rs. 2,500.00. The basis for the suit was that the plaintiff was owner in the village estate while the vendee did not possess any equivalent or superior qualification to retain the land.

2. The learned trial Judge, however, found that on the date of the sale, the plaintiff ‑appellant was not an owner in the village, though he became owner later on the death of his father before he actually instituted the suit. This, according to the learned trial Judge, did not satisfy the basic condition in accordance with which the plaintiff should possess superiority in qualification at the time of sale when the cause of action initially arose. Accordingly, the plaintiff's suit was dismissed and so also his appeal to the learned Additional District Judge, Lahore, at Sheikhupura.

3. As in the Courts below, learned counsel for the appellant here relied upon Allahdad v. Hukamdad (P L D 1960 Lah. 900) in support of the proposition that the devolution of proprietary rights in the village upon the plaintiff on the demise of his father prior to the institution of the suit would sustain a suit for pre‑emption although he may not have possessed that qualification at the time of the sale. As rightly pointed out by the two Courts below, the precedent case relied upon on behalf of the plaintiff appellant proceeded entirely on different facts. The main question before the F.B. was whether the right of pre‑emption based on property or relationship was heritable right. The Full Bench by majority answered the question in the affirmative. The Full Bench case would have availed to the plaintiff appellant only if his father had instituted the suit for pre‑emption and had died during its pendency in which the former, upon the death of the latter could have continued the suit. Since the plaintiff's father did not file the pre‑emption suit during his lifetime, therefore, there can hardly be any question of devolution of right of pre‑emption upon the plaintiff on the death of his father. In my opinion, the present case is covered by a dictum in another Full Bench case of the former Lahore High Court in A I R 1944 Lah. 172, wherein it was held inter alia that a pre‑emptor cannot improve his position after the date of sale or the institution of the suit. Similarly, it was held in A I R 1947 All. 297 that the crucial dates on which the plaintiff in a pre- emption suit must establish his subsisting title are date of the sale, the date of the suit and the date of the decree and this has reference to the property on the strength of which the suit for pre‑emption is brought. There is a clear distinction between the position of a plaintiff pre‑emptor and the defendant‑vendee in a suit for pre‑emption. While the plaintiff pre‑emptor who does not possess a superior qualification at the time of the sale cannot avail of the subsequent improvement in his status to give him preference over the vendee, the latter, is placed in a better position, that is to say if the vendee did not possess superior or equivalent qualification at the time of sale but acquires the same before the institution of the suit or at any time after the institution of the suit before the decree of the trial Court, he will be able to defeat the plaintiff's suit.

4. For the foregoing reasons there is no substance in this appeal which is dismissed in limine. A. E. Appeal dismissed in limine.