1979 PLP 889 (CLC)

This second appeal arises from the judgment and decree dated 4-9-74 of the learned District Judge Sheikhupura whereby the judgment and decree passed by the learned Civil Judge Ist Class, Sheikhupura decreeing the suit for possession by pre-emption, was upheld.

2. The facts are that one suit for possession by pre-emption was brought by the appellants without impleading Saleh Muhammad rival pre-emptor, Saleh Muhammad had brought another suit for possession by pre-emption in which in the beginning he not impleaded Mst. Jaffaran Bibi as party. Mst. Jafran Bibi appellant secured a consent decree and thereafter sold the land on the basis of which she had claimed a superior right of pre-emption, After she obtained the decree Saleh Muhammad rival pre-emptor impleaded her as party to his suit. The suit of Saleh Muhammad was decreed in respect of the whole property ignoring the decree obtained by the appellant. The appellant thereupon brought an appeal to the learned District Judge which failed and now has come up in second appeal. The appellant has claimed that since it was not known to her and to the vendee that Saleh Muhammad had also brought a suit for possession by pre-emption therefore, she did not implead him as a party but in spite of it decree for half of the land only could be granted to Saleh Muhammad as both were claiming equal right of pre-emption. Learned counsel for the appellant has also argued that Mst. Jaffaran Bibi appellant was required to retain on the basis of which she had a superior right of pre-emption and obtained a decree for possession by pre emption up to the date of securing the decree and not afterwards and that even though she sold the said land after obtaining the decree but before the suit brought by Saleh Muhammad could be decided, she could not sell the land. On the other hand, it has been argued by the learned counsel for the res pondent that it was necessary for the appellant to implead Saleh Muhammad as party to her suit and that this plea that she did not know that Saleh had brought a suit for possession by pre-emption is of no avail to her. He has also argued that since the appellant had sold the land on the basis of which she had claimed superior right of pre-emption, before the case of Saleh Muhammad could be decided she lost her right.

3. Learned counsel for the appellant has relied upon Mst. Fateh Bibi v. Ahmad Khan and '6 others (P L D 1971 Lah. 171), Ghulam Tayyib v. Shahro Khan and others (P L D 1962 B J 1) and Muhammad Akram Khan v. Kaniz Fatima Dibi etc. (P L D 1952 Lah. 489 ).

4. The provisions of section 28 of the Pre-emption Act are mandatory and their strict compliance is necessary. It states: "When more suits than one arising out of the same sale or for closure are pending the plaintiff in each suit shall be joined as defendant in each of the other suits, and in deciding the suits the Court shall in each decree state the order in each claimant is entitled to exercise his right." As the provisions are imperative the plea of ignorance of. the institution of other suit cannot be accepted. Right of pre-emption being a very weak right, the person who comes forward to exercise such a right should be very B alert and vigilant. Before the expiry of period of limitation he should make inquiry if some other suit had been brought by some other person claiming superior or equal right to him. As the vendee is always the same it is not difficult to find if any other suit has been brought. By making application to the Court an information can be taken if any other suit in respect of the same sale had been brought against the vendee. In the present case too if the appellant had taken care to make inquiry from the trial Court it was not difficult for her to come to know that Saleh Muhammad had also brought a suit for possession by pre-emption. P L D 1962 B J 1 cited by the learned counsel for the appellant rather supports the case of the respondent. It has been observed in this authority: "The effect of the imperative provisions of section 28, is that if one of the suits is decided in the absence of the plaintiff in the other suit, the decision cannot be binding on that plaintiff." The decree which Ghulam Tayyab, therefore, obtained without impleading Shah Rukh Khan was contrary to the provisions of section

28. In P L D 1971 Lah. 171 the facts of the case are not the same as that of the present one. In that case the vendee had sold land privately to another person who had equal right with the pre-emptor. It was held that:- ".No doubt the rule of lis pendens applies to pre-emption suits but it does not affect the validity of the sale effected by the vendee during the pendency of the pre-emption suit to a person possessing a right of pre-emption equal to that of the pre-emptor, the reason being that such a sale does not really offend against the true rule of lis pendens and the purchaser can successfully defend his title on the ground of his pre existing right whether it is equal or superior to the pre-emptor ." It has been further observed:- "If a person possessing a superior right of pre-emptor instead of buying the suit property privately brings a pre-emption suit in respect of the same property, his suit will succeed and the pre-emptor will be non suited. Consequently there is no-cogent reason why the same result should not follow in case such a person instead of bringing a pro-emp tion suit buys the suit property out of Court from the first vendee. It is also well established that a vendee may sell to a person who has an equal right with the pre-emptor or who has a superior right to the pre-emptor so as to defeat the pre-emptor's claim provided the transaction is genuine." No doubt according to the observations made by their Lordships that a person having equal or superior right of pre-emption can privately purchase the land from the vendee to defeat another person who has brought a suit for possession by pre-emption. The observation is in contravention of the law enunciated in P L D 1962 B J

1. It has been clearly held, as discussed above, in the Baghdad-ul-Jadid authority that the provisions of section 28 are impera tive and it is necessary for the pre-emptors to implead the plaintiff of the other case as defendant to his suit. View taken by his Lordship in Baghdad ul-Jadid case appears to be much sound. A person may privately purchase the property and in this manner can defeat the suit of the pre-emptor, but if he brings the suit then the provisions of section 28, being imperative he is bound to implead the rival pre-emptor as party to his own suit and if he does not do so he will not succeed.

5. As the appellant did not implead Saleh Muhammad as party to her suit, the decree obtained by her is not binding upon Saleh Muhammad respondent. The other difficulty is that the plea of having equal right with Saleh Muhammad cannot be considered because before that suit could be decided she had sold the property on the basis of which she had claimed the superior right of pre-emption. The fact that at the time her suit was decreed she was retaining land that would not benefit her.

6. As a result of the observations made above, I do not find any force in the present appeal and dismiss it but leave the parties in the peculiar circumstances of the case to bear their own costs of this second appeal. Appeal dismissed.