1993 PLP 202 (MLD)

(2) Whether the suit land is not pre‑emptible? OPD (3) Whether the suit is barred by time? (4) Whether the plaintiffs have got superior right of pre‑emption against defendants? OPP. (5) Whether the ostensible sale price of Rs. 30,000 was actually fixed and paid? OPD. (6) If issue No.5 is not proved what was the market value of the suit property at the time of impugned sale? OPP. (7) Whether the plaintiffs are estopped by their word and conduct to bring the present suit? OPD (8) Whether the defendants have made improvements over the suit land? If so with what cost and to what extent? OPD (9) Whether the signatures and thumb‑marks of the plaintiffs on the plaint are forged and fictitious? If prove with what effect? OPD. (10) Whether this Court has no jurisdiction to hear this suit? OPD (11) Relief. and after recording of evidence vide judgment and decree dated 6‑10‑1982 decreed the suit in, favour of the plaintiffs‑appellants. Aggrieved by the said judgment and decree, respondents Nos.l to 5 filed regular first appeal but respondent No.6 did not contest the decree and hence did not challenge the same by way of appeal. Learned Additional District Judge, Sheikhupura vide judgment and decree dated 25‑3‑1985 accepted the appeal, set aside the judgment and decree passed by the learned trial Court and dismissed the suit filed by the petitioners. It is this judgment and decree which has been challenged by some of the plaintiffs pre‑emptors who were available at that time and has also been filed for the benefit of respondents Nos.7 to 10 the successful pre‑emptors. During the course of this appeal, the respondents have moved an application C.M. No. 4623‑C‑90 seeking permission to place on record the death certificate of Mst. Naziran, who is mother of Muzaffar, respondent No.5 and Mutation No. 160 dated 27‑2‑1990 on the basis whereof respondent No.5 wants to prove that he having become owner in the estate during the pendency of this appeal through inheritance the status of stranger vendee stands improved and therefore the right of vendees being equal, the suit is liable to be dismissed as no decree can now be passed in favour of the appellant. This application has been contested by the appellants on the ground that improvement of status during the pendency of appeal after decision by the learned trial Court is not relevant for the purposes of deciding the superiority of right of pre‑emption and hence the documents being irrelevant cannot be produced by way of additional evidence.

2. Mr. Muhammad Yaqoob Sindhu, Advocate, learned counsel for the appellants has argued that admittedly vendee respondent No.5 was not an owner in the estate at the time of sale. Pre‑emption suit was filed on 16‑7‑1970. On the basis of `Tamleeknama' on 25‑6‑1979 the said respondent could not have improved his status and as the sale price was paid in lump 'sum, the sale shall be deemed to be indivisible hence in accordance with the provision of section 21 (A) of the Punjab Pre‑emption Act as well as the law laid down in case of Abdullah and 3 others v. Abdul Karim and others (PLD 1968 SC 140), Muhammad Ismail and others v. Karamat Ali and others (PLD 1989 SC 474). The principle of sinker will apply in the case in hand and that the learned first appellate Court has illegally set aside the judgment and decree passed by the learned trial Court in favour of the pre‑emptors. Learned counsel has further argued that respondent No.5 cannot improve his status even through inheritance after a favourable decree has been passed by the learned trial Court in the suit. Mr. Shamim Abbas Bokhari, Advocate, learned counsel for the vendee respondent has argued that through inheritance due to the death of mother of respondent No.5, the stranger vendee has improved his status as per provision 21 (A) of the Punjab Pre‑emption Act and hence status of all the vendees has become equal to the pre‑emptors inasmuch as the vendees are also owners in the estate and as the appeal is continuation of the original suit, inasmuch as the decree passed by the learned trial Court has been set aside, therefore no decree can now be passed in favour of pre‑emptor appellants hence the appeal is liable to be dismissed. Learned counsel has argued that the documents referred to above are quite relevant and being certified copies of the public record may be allowed to be placed on record of the case by way of additional evidence. In support of the first contention, learned counsel relies on the `cases of Alaf Din v. Mst. Parveen Akhtar (PLD 1970 SC 75) and The Province of East Pakistan v. Muhammad Hussain Mian (PLD 1965 SC 1) and (PLD 1964 SC 520).‑: Learned counsel for the respondents, however, has conceded that the sale is joint and in case it is held that due to inheritance respondent No.5, a co vendee, has not improved his status as per provision of section 21(A) of the Punjab Pre-emption Act, the principle of sinker will apply and the appellants pre‑emptors shall be entitled to grant of decree in their favour. .

3. I have considered the arguments addressed by both the learned counsel for the parties and have also gone through the record of the case as well as the provisions of section 21 (A) of the Punjab Pre‑emption Act and judgment cited at the Bar. There is no cavil with this proposition that the appeal is in continuation of a suit but the concept has to be given a limited meaning. It cannot be held that the rights which can be taken note of and A which can be pleaded before the suit was filed can be taken note of by the appellate Court after a favourable decree has been passed by the trial Court. Following observations in the case of Zahooruddin v. Hal Din, (AIR 1944 Lah. 319) will have a direct bearing on the decision of the question raised by the learned counsel for the respondent:‑‑ "It is also true that Courts do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff's suit would be wholly displaced by the proposed amendment, see Steward v,. The North Metropolitan Tramways Company (1985‑86) 16 OBD 178, and a fresh suit by him would be barred by limitation although in cases where it would not be so barred, different considerations might come into play and a different view might be possible. It cannot be however, disputed that ordinarily an appellate Court can give effect to such rights only as had come into being before the suit had been disposed of and which the trial Court was competent to dispose of." It was further held that "it is thus the events which have occurred before the date of the decision by the Court of first instance that can determine the question whether the pre‑emptor had a superior right to acquire the property to that of the vendee. And it seems to lie immaterial in my opinion, whether the decision of the trial Court is in favour of or against the pre‑emptor as long as it is a decision on the merits of his rights It seems to be essential that a line should be drawn at some stage when the race between a pre‑emptor and a vendee ought to come to an end and after leaving the well known landmark of the date of the sale behind as we now must the farthest limit that can be granted to a vendee is that of `at any time before the adjudication of the suit'," It is true that amendment has been brought in the Punjab Pre‑emption Act by way of addition of section 21 (A) vide Act 1 of 1944 but the amendment shall have to be interpreted in harmony with other provisions of the Act as well as the other legally settled principles. It has been held that in the case of Niaz Gul v. Habib‑ur‑Rehman PLD 1962 Pesh. 178 that vendee improving his position during the pendency of the appeal is not entitled to defeat the right of pre emptor. In the case of Ghulam Muhammad v. Bagga PLD 1962 Lah. 693 it has been held that ‑a vendee can improve his status after the sale but before the institution of his suit whereas the pre‑emptor is not so entitled. Any improvement on account of inheritance therefore has to be limited to the date of final adjudication of the suit by the learned trial Court. Subsequent improvement of status during the pendency of appeal even if the decree has been set aside by the learned appellate Court, will be of no avail inasmuch as the right of pre‑emption is recognized in the shape of a decree passed by the learned trial Court and in the higher forum, the pre‑emptor shall in fact be defending the decree passed in his favour and hence any subsequent improvement in the status of the vendee cannot affect his superior right of pre emption inasmuch as a pre‑emptor is supposed to retain his superior pre-emptive right upto the stage of passing of a decree in his favour and not thereafter. This view also finds support from the case of Sardar Ali v. Muhammad Ali and others PLD 1988 SC 287 wherein their Lordships have held as under:‑‑ "I may also observe that the contrary plea raised on behalf of the respondents that even in those cases where a decree in favour of the plaintiff has been passed before 31‑7‑1986 but an appeal or revision is pending against it in an higher forum will also be liable to be set aside if it is based on the assertion of a right which has been found repugnant to the Injunction of Islam in said Kamal Shah's case because after 31‑7‑1986 there will not be any existing contemporaneous law in support of it; is also, fallacious. The law is well settled that where the rights of the parties have been judicially determined with reference to the terms of a law in force at the time of the adjudication the finality of such a judgment will not be affected merely because the law on the basis of which that decision was rendered has subsequently been altered unless a provision is expressly made in the changed or modified law destroying the finality of the aforesaid judgment. This rule was clearly enunciated by the Privy Council in John Lemm v. Thomas Alexander Mirchell (L.R. 1912 Appeal Cases 400), which related an action for criminal conversion but was dismissed on May 5, 1908 as incompetent. On December 11, 1908, however, an Ordinance (Hong Kong Ordinance 20/1908) was promulgated which gave a right to the respondent to bring such an action. It was held that although the enactment purported to have retroactive effect, a subsisting judgment which was founded on the then existing law could not be annulled without explicit words to that effect. This rule, has been adhered to by this Court and it has in a recent judgment in the case of Pir Bux and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145. reiterated it and cited with approval the following observations made by this Court in the earlier case of Income‑Tax Officer v. Cement Agencies Ltd. PLD 1969 SC 322. "The view that I have taken receive support from the decision of this Court in Civil Misc. Petition No.K‑21 of 1968 (Works Cooperative Housing Society and another v. The Karachi Development Authority), decided on the 20th Jan. 1969. In this case, my Lord the Chief Justice in his judgment, referred to the decision of the Privy Council in the case of Lemm v. Mirchell, LIZ 1912 AC

400. The Privy Council observed that even a legislative measure like an Ordinance expressly given retroactive effect could not operate so as to annul a valid and existing judgment as between parties whose rights had been duly determined and according to the law which existed before the new Ordinance was passed. To the same effect is the decision in the case of Eyre v. Wynn Mackenzie (1986) 1 Ch. D.135." Judgments referred to by the learned counsel for the‑ respondent are distinguishable in facts as the point in issue was not directly involved in these cases. In R.S.A. No.47 of 1984 Muhammad Akram v. Muhammad Rashid and others, my brother his Lordship Mr. Justice Khalil‑ur‑Rehman Khan, J., a learned Single Judge of this Court decided on 9‑6‑1991, has also taken the view that any improvement made during the course of second appeal in the status of a vendee is of no consequence. Consequently, argument of the learned counsel for the respondents is repelled and it is held that the respondent No.5 being a stranger, the principle of sinker will be applicable and as the pre‑emptor has a superior pre‑emptive right qua him other vendees lose their right of pre-emption. Hence the petitioners having proved their superior right of pre‑emption and the sale being admittedly indivisible, suit was rightly decreed by the trial Court. Judgment and decree passed by the first appellate Court is illegal. C.M.Co.4623-C-90 is dismissed inasmuch as even if the documents to be produced in evidence are taken into consideration, they are irrelevant for decision of the controversy in question. No other point has been raised by the learned counsel for the respondents. Resultantly, this R.S.A. is accepted, impugned judgment and decree passed by the learned appellate Court is set aside and the judgment and decree passed by the learned trial Court is set restored. The respondents shall bear their own costs throughout. A.A/R-64/L Appeal accepted.