P L D 1981 Supreme Court 347 (PLP)

ASLAM RIAZ HUSSAIN, 1.-This petition is directed against the judgment of the High Court dated 13-11-1975, dismissing the petitioner's R, S, A. in a pre-emption matter. The facts leading to the present petition, briefly, are; that Ranjey Khan etc, respondents purchased some land in Mauzia Kayanpur, Tehsii and District Multan, on 27-2-1972. But Fateh Khan who was tenant on the said land filed a suit to pre-empt the sale. The suit was decreed only to the extent of 2 marlas of the land in question on the ground that he was co-sharer in the khata relating to those 2 marlas but the suit was dismissed with respect to the rest of the land on the ground that he did not have a superior right of pre-emption as against the respondents-defendants. The petitioner's appeal before the District Judge and the High Court were dismissed. Hence this petition.

2. The learned counsel for the petitioner submitted that after the date of the sale Martial Law Regulation 115 was enforced on 11-3-1972, paragraph 25(3) (d) of the said Martial Law Regulation provides that a tenant shall have the first right of pre-emption in .respect of the land comprised in his tenancy, subject to the other provision of the M. L. R.

3. The counsel submitted that the learned Courts below had not taken into consideration the fact that during the pendency of the suit the petitioner plaintiff had improved his status, and had acquired a right superior to that of the respondent-vendee.

4. The question of improvement of status by the vendee/defendant after the institution of the suit for pre-emption is dealt with in section 21-A of the Punjab Pre-emption Act, 1913. This section provides that "Any improvement, otherwise than through inheritance or succession, made in the status of a vendee-defendant after the institution of a suit for pre-emption shall not affect the right of the pre-emptor plaintiff in such suit." Although this section does not clearly state so but, by implication, permit a vendee-defendant to improve his status after the sale but before the suit for pre-emption is' instituted. There is, however, no comparable provision with regard to the plaintiff-pre-emptor. The consensus o authorities, however, is that as the right of pre-emption is predatory in nature, therefore, while the vendee-defendant is permitted to rely on an improvement made in his status after the date of the sale, the plaintiff pre-emptor is not permitted to do so. It was held by a Full Bench decision of the Lahore High Court, Lahore, in Faiz Muhammad v. Ch. Faja Ali Khan and another (AIR 1944 lah 172). In that case, the question referred to the Full Bench for decision was as to whether it is permissible for a pre-emptor to so improve his position before the date of the institution of the suit (although after the date of the sale) as to render the improvement made by the vendee in his status after the institution of the suit for pre-emption against him, ineffectual. The learned Court, after discussing the relevant case-law, held that :- "The vendee is on the defensive and is entitled to arm himself with a shield in order to protect his right which had accrued to him on the basis of his contract. A pre-emptor is on the other hand an aggressor. It .is he, therefore, who must show that the superior right to pre-empt which he had at the date of the sale continues to remain superior at all relevant times. If he fails to show that, he must fail in his suit. Hence it .is not permissible for a pre-emptor to so improve his position before the date of the institution of the suit for pre-emption against him ineffectual." This judgment was consistently followed by the Lahore High Court. Reference, in this connection may be made to Ghulam Muhammad and another v. Bagga and others (P L D 1962 Lah. 693), Abdul Khaliq v. Abdul Ghani (P L D 1969 Lah. 249) and Abdul Majid v. Tora Baz Khan ((1882) 5 All. 172). In view of the above discussion it is quite clear that the plaintiff pre-emptor (petitioner herein) could not invoke as against the vendee defendant (respondent herein) any improvement made in his status after the date of the sale in question. The petition is consequently dismissed as having no merit. s. A. H. Petition dismissed.