P L D 1954 Peshawar 75 (PLP)

MUHAMMAD SHAFI, J.‑Safarash son of Mir Hawas, was the owner of 9 kanals 8 marlas of land, bearing Khata Nos. 1200, 1202, 1203 and 1204, in village Khunda, Tahsil Swabi, District Mardan. This land was mortgaged in favour of Muhammad Hayat for Rs.

800. By a sale deed dated 24th May, 1951, Safarash sold the equity of redemption of this land in favour of Ajab Khan, son of Najibullah Khan in lieu of Rs. 3,000 minus Rs. 800 i.e., Rs. 2,

200. This sale has been pre‑empted by Mst. Mehri, who claimed that she was a co- sharer in the land in dispute, had got land adjacent to it, and further that both the lands i.e., the land in suit and her own personal land were irrigated by the same well. She further averred in the plaint that Khasra No. 3727 in Khata No. 1200, which was included in the sale, was in fact the property of Muhammad Hayat defendant No. 2, and not that of Safarash, and consequently no decree with regard to it can be passed in her favour, and it should, therefore, be considered as not having been sold at all. The suit was resisted by Ajab Khan, the vendee, who raised several objections, which are fully incorporated in the following four issues :‑ (1) Whether the plaintiff has a superior right of pre‑emp tion? (2) What is the area sold and to what effect? (3) Whether Rs. 2,200 were fixed in good faith or paid as price of the equity of redemption of, the land transferred? (4) What is the market value? On issue No. 1 the learned trial judge held that the plaintiff had a superior right of pre‑emption ; in respect of 87/243 shares out of Khasra Nos. 3704 and 3725 in Khata No. 1200. With regard to the other Khatas, he held that the plaintiff had no such right. While discussing Khata Nos. 1202 and 1203, the learned trial judge held that Mst. Mehri was a co‑sharer therein, but then after the institution of the suit Ajab Khan had also become a co‑sharer by reason of the fact that his father, who was a co‑sharer in such land, and died, leaving Ajab Khan as his heir. On issue No. 2, he found that Khasra No. 3727 in Khata No. 1200 was wrongly included in the sale in dispute, and that it as a matter of fact belonged to Muhammad Hayat and others. On issue No. 3 he arrived at the conclusion that Rs. 340 only were paid 'before the Sub-- Registrar, and, therefore, this was the only amount, which was proved to have been actually paid. On issue No. 4, he held that the market value of the property should be fixed at the rate of Rs. 385‑5‑0 per Kanal, and according to this the value of the land in suit was more‑than Rs. 3,

000. As a result of his above findings, he granted plaintiff a decree for possession by pre‑emption of the equity of redemption 87/243 shares out of Khata Nos. 3704 and 3725 against the defendants on, payment of the proportionate amount of Rs. 1,

052. He left the parties to bear their own costs. There was an appeal against this decree, which was dis missed by the Senior Sub‑Judge Mardan on 21st January 1953. The plaintiff has come up in revision to this Court. Only two points have been argued before me by the learned counsel appearing, for the petitioner, (1) that the learned trial Court was wrong in fixing the market‑value of the land in suit at Rs. 3,000 and (2) that the vendee Ajab Khan could not have improved his right after the sale so as to non‑suit the plaintiff. Developing his argument on the first point, the learned counsel submitted that under section 25 of the North‑West Frontier Province Pre‑emption Act XIV of 1950, all that the Court has got to find is as to what was the price which was fixed in good faith or paid, and it is only when the Court arrives at the conclusion that such a price cannot be ascertained that it can go into the question of the market‑value of the property in suit. He contended that since the learned trial Court found that Rs. 340 only were proved to have been paid, the Court could not go into the question of the market‑value at all. This is obviously a misreading of section 25 of the Act, wherein it is laid down that the Court in the first instance shall determine whether the price at which the sale purports to lave taken place has been fixed do good faith or paid, and if it finds shat the price was not so fixed or paid, then it shall fix as the price for the purpose of the suit, the market‑value of the land or property. The ordinary meaning of the above provision of law is .not that no sooner a Court finds as to what was the actual money paid, it is precluded from going into the question of the market‑value, but that it shall go into that question if it is of the opinion ‑that the price at which the sale purports to have taken place has not been fixed in good faith or paid. The trial Court in the case before me found on very good evidence that Rs. 2,200 at which the sale purported to have taken place were not proved to have been fixed in good faith or paid, and so it was perfectly justified in going into the question of the market‑value of the property in dispute. As regards the second question the learned counsel argued that it has been consistently held by this Court in two reported cases, Jemadar Amirul Mulk v. Mir Said and others (A I R 1942 Pesh. 45.) and Sardar Begum v. Sayed Masoom Shah (A I R 1945 Pesh. 7.), that a right to pre‑empt arises as soon as a sale takes place, and the vendee cannot be allowed by his unilateral act to defeat the right which the pre‑emptor has already acquired. The date of the sale according to these authorities is the date on which the right of the parties is to be considered and not the date of the suit. The fact, that Najibullah, the father of Ajab Khan, that vendee, died prior to October 1951 is not denied, and is also proved by the fact that his death was entered in the Roznamcha‑i‑Waqaati on 25th October 1951, and mutation No. 5135 was entered on 30th November 1951, and finally attested on 14th May, 1952. It is also not denied that Najibullah Khan was a co‑sharer in Khatas Nos. 1202 and 1203. It is then, proved beyond a reasonable doubt that Najibullah Khan's interest in the property was inherited by his son Ajab Khan. It is therefore clear that before the institution of the suit Ajab Khan had become a co‑sharer in these two Khatas. The two cases cited by the learned counsel for the petitioner at the Bar were decided under the old Pre‑emption Act, which has since been‑ superseded by the North‑West Frontier Pre-emption Act XIV of 1950, which includes section, 16, according to which no decree for pre‑emption can be passed in favour of any, person unless he has a subsisting right of pre‑emption at the time of the decree. In view of this change of law it is very doubtful .if the law enunciated in the two authorities mentioned above is still a good law. In any case, those two authorities are distinguishable from the present case, because in those cases the,, acquisition of right by the vendee depended upon the volition of the vendor, and it was held that the vendee by his unilateral act could not non‑suit the plaintiff, to whom the cause of action had arisen on the day when the sale had taken place. In the case under discussion the improvement of the vendee's right' was not due to any act of his own, but on account. of the devolution of certain rights upon him. The right of pre‑emption no doubt is a personal right, but then all that is meant by this expression is that it is personal in the sense that it cannot be transferred. It does not mean teat it cannot be inherited along with the land to which it is attached and is inherent in it. A sale it contravention of the pre‑emption right is an injury to the co sharer in that property, and gives him a statutory right to be substituted for the vendee in the sale. On the death of such a co‑sharer, the whole bundle of rights which passes on to the heirs is the ore which is connected with the property, and this obviously included the right to institute a suit for pre‑emption The right of pre‑emption is, therefore, in my view, an inheritable right and a person who inherits this right has got a right to instituted a suit for pre‑emption provided it is within time. It stains credulity to suppose that whereas a person can maintain a suit if he inherits a property, which gives him a superior right of pre‑emption over the vendee with regard to the property sold in the latter's favour, he cannot successfully resist a suit for pre‑emption, if after the sale but before the decree the vendee's position is improved by reason of the fact that certain legal rights giving him an equal or better states than the pre‑emptor are devolved upon him. It consequently follows that Ajab Khan could success fully resist the pre‑emptor's suit, because after the institution of the suit but before the decree was passed, his position improved by reason of the fact that he became a co‑sharer in the property in slit, a right equal to that of the pre‑emptor. In this view of the case, the plaintiff petitioner has no legs to stand upon. The revision petition is consequently dismissed, but considering that a difficult question of law is involved in the case, I leave the parties to bear their own costs throughout. Order announced. A. H Petition dismissed.