2011 SCMR 766 (PLP)

SARDAR MUHAMMAD ASLAM, J.

Plaintiff-Respondent No, 1, instituted a suit seeking possession by way of pre-emption through his next friend, against Muhammad Shah, Vendee-Defendant, predecessor of the present petitioners in respect of land measuring 27 Kanal, 17-Marla transferred through sale mutation dated 24-6-1968. Karamat Hussain, respondent No. 2, in this petition was impleaded as defendant No. 2, on having purchased a portion of land from a legal heir of deceased vendee while Abdul Khaliq, defendant No. 3 for claiming pre-emption of land against defendant No.

2. Acclaimed superiority of pre-emptive right was on the qualification of being son of the Vendor. Defendants contested the suit. Issues were framed parties produced their respective evidence. Suit was decreed on 28-2-1982, in favour of pre-emptor. First appeal of defendant was allowed vide judgment dated 30-7-1985. Against this judgment, RSA of pre-emptor was dismissed on 14-11-2000. This Court on 9-1-2000 set aside the judgment in RSA and remitted the case to the High Court, for decision afresh. In post-remand proceedings, the RSA was allowed on 13-4-2008, which is under challenge through this petition.

2. Assailing only the findings recorded on Issue No.1, learned counsel for defendant laid stress that transaction in dispute arrived through decree of the Court, was not a sale and, thus, not amenable to pre-emption. On the other hand, learned counsel for pre-emptor, on notice, argued that decree in suit for specific performance was not on account of recognition of superior right of pre-emption and was thus a pre-emptible sale pure and simple. Further Contended that no notice under section 19 of the Punjab Pre-emption Act, 1913, was issued to him, the only effect of which is extinguishment of a right of pre-emption under section 20 of the Punjab Pre-emption Act. He placed reliance on "Diwan Chand v. Ghulam Hussain" (30 Punjab Record 1897).

3. We have heard learned counsel at some length and perused the impugned judgment. Learned High Court, on appreciation of evidence, concluded that no evidence is available on record in support of plea raised by the Vendee-Defendant that pre-emptor has waived his right of pre-emption. Pre-emptor is son of Mazhar Hussain Shah, Vendor. Notice under section 19 of the Punjab Pre-emption Act, 1913, was issued to the defendant only. Vendor through an application dated 20-12-1965, Exh.D2, before the Court seized of proceedings on issuance of notice, declined to sell the land to Vendee, who then recoursed to filing a suit for specific performance, on the basis of agreement recorded in Court, which culminated into a decree. Eventually, Mutation No.47 was attested on 246-1968. Section 19 of the Punjab Pre-emptor Act, provides a mechanism for issuance of a notice to persons having a right of pre-emption. Section 20 provides extinguishment of pre-emptive right of a person who fail to respond to the notice. Pre-emptor who had a superior right of pre-emption, being son of Vendor, was not served with any notice, so extinguishment of his right of pre-emption cannot be pleaded. Reference was rightly placed on the case of Diwan Chand supra. Following observations from the judgment are reproduced:-- "An owner of certain land gave notice to the pre-emptor of his intention to sell at a stated price. The pre-emptor refused to give such price, but tendered what he considered to be the market value of the land, and, upon this tender being rejected by the owner, instituted a suit to enforce a sale at the market value. Held, that the suit would not lie, there having been no completed sale, but merely a proposal for sale which the owner of the land was entitled to revoke at any time before acceptance, and which in the present case had not been accepted by the pre-emptor before the owner's revocation. When a vendor issues a notice under the Punjab Laws Act of his intention to sell, he does not thereby deprive himself of his right to realize for his property any price which the vendee is prepared in good faith to pay or agrees to pay, the only effect of the issue of the notice being to reduce the period of limitation, or, possibly, to extinguish the pre-emptor's right altogether if he refuses to buy at the price named, and it, is found that this price has been fixed in good faith". (Emphasis Supplied)

4. After considering the evidence available on record, we are in agreement with the reasoning of the learned High Court, and, do not find any merit in this petition, which is converted into appeal and is dismissed. M.A.K./M-96/SC Petition dismissed.