P L D 1975 Peshawar 34 (PLP)

SHAH NAWAZ KHAN, J.

This Letters Patent Appeal is directed against the judgment of a learned Single Judge of this Court dated 27-5-1968, whereby the Regular Second Appeal of Rehan plaintiff appellant against the judgment and decree of the learned Additional District Judge, Peshawar, was dismissed with costs. Quest of the vendee to set his foot in by acquiring land in this area and the intransigence of the plaintiff-appellant to frustrate his plans have already landed them in multiple suits and the present L. P. A. is yet another attempt of the plaintiff-appellant to undo the effort of the vendee-respondent to substantiate his claim of being a co-sharer in the land, in respect of which the plaintiff-appellant has repeatedly been trying to enforce his right of pre-emption.

2. The litigation between the parties started when Qazi Azizur Rehman defendant-respondent, purchased 2 kanals and 8 marlas of land comprised in Khasra No. 283, Khata No. 274/868, situated in the limits of village Landi Yarghujo from one Wajahat Ali Shah claiming to be an owner, vide sale deed dated 2-7-1956, registered on 5-7-1956. Rehan of the same village claiming to be a co-sharer in the suit Khasra and Khata Number, instituted a suit on 2-7-57 for the possession of the said land by enforcing his right of pre-emption. But before that Suit No. 133/1 of 1957 was instituted, Qazi Azizur Rehman alongwith three others purchased, some more land total measuring 7 kanals 13 marlas, in the same Khasra and Khata Numbers from some owners vide registered sale deed dated 10-4-1957. Later vide sale deed registered on 22-4-1957, Qazi Azizur Rehman defendant-respondent purchased yet another piece of land measuring 2 kanals 11 marlas in that very Khasra and Khata Number, from some other owners. Rehan plaintiff was, therefore, obliged to institute two more suits one bearing No. 80/1 on 27-2-1958 and the other bearing No. 151/1 on 9-4-58 against Qazi Azizur Rehman, vendee for possession of the land purchased by him by exercising his right of pre-emption.

3. From the above, it will appear that the first sale sought to be pre-empted was that in Suit No. 133/1 of 1957 referred to above and the second sale was subject to Suit No. 151/1 of 1958 while the third sale was the subject-matter of Suit No. 80/1 of 1958 and all these sales had been com pleted well before the institution of any of the three suits under discussion. It follows that with a view to save the purchase of July 1956 which was in fact the first in the series, from pre-emption, Qazi Azizur Rehman vendee improved his status by purchasing another piece of land in the same Khasra and Khata Numbers on 10-4-1957 and still further by purchasing land in the same Khasra and Khata Numbers on 22-4-1957. Therefore within the meaning of section 29 of the N: W. F. P. Pre-emption Act, 1950 as amended uptodate, Suit No. 133/1 of 1957 relating to first sale should have been stayed till the decision of Suit No. 151/1 of 1958 relating to the second transaction wherein the question of improvement of the status of the vendee-defendant was involved. For the same reason decision in the case relating to second transaction should have been deferred pending the decision of Suit No. 80/ 1 pertaining to the last transaction. Incidentally all the three suits were pending in the same Court, wherein such question arose and while Suit No. 133/1 of 1957 was dismissed as withdrawn much earlier, both the Suits Nos. 80/1 and 151/1 of 1958 were disposed of by the learned trial Judge on one and the same date.

4. Perusal of Case File No. 133/1 of 1957, referred to above, would disclose that on 3-3-1958 an objection was raised before the Court that since the vendee had purchased some other areas out of the suit Khasra and Khata Numbers in respect of which Rehan plaintiff had instituted two separate suits which were pending disposal, therefore, proceedings in file No. 133/1 be stayed. The learned Sub-Judge 1st Class, Peshawar, accepted the request and by order of the same date, stayed proceedings in that case. It is not clear from the available record as to how and at whose instance proceedings in that case were revived but the perusal of the order sheet of Case File No 133/1 Neem, decided by Sub-Judge 1st Class, Peshawar on 21-3-60 would disclose that on 27-6-1959, the case was re-entered on neem number and proceedings therein were started. Presence of plaintiff and defendant-2 (vendee) has also been noted in the first order of that date. That case was, however later withdrawn by Rehan plaintiff by stating that the father of Wajahat Ali Shah was alive and that the property stood in his name. Further that Wajahat Ali Shah vendor was not competent to sell the land sought to be pre-empted and since no proper sale had taken place, therefore, he i.e. the plaintiff did not want to pursue the case further and the same was accordingly dismissed as withdrawn by order dated 21-3-1960.

5. Property involved in Case File No. 151/I was sold in favour of Qazi Azizur Rehman vendee before he purchased the land subject of dispute in Case File No. 80/1. The perusal of para. 6 of the plaint of Case File No. 151/1 discloses that plaintiff Rehan Khan had instituted a suit for pre-emption in respect of that very land sometime before 9-4-1958 which was later withdrawn by him with permission to institute a fresh suit on payment of Rs. 20 as "harjana". It is not clear on record as to when that suit was originally instituted but the fresh suit was instituted on 9-4-1958 after Rehan had already instituted Suit No. 80/1 wherein he claimed the pre emption of the piece of land in this very Khasra and Khata Number which Qazi Azizur Rehman vendee had purchased from Abdur Rehman Shah an owner after the purchase of land involved in Suit No. 151/1. Therefore, even if the property involved in Suit No. 133/1 of 1957 is ignored from consi deration for any reason, the suit which pertained to land through the purchase of which the vendee had improved his status should have been proceeded with first and not No. 151/1 because the fate of Suit No. 151/1 depended on the result of Case No. 80/1 of 1958 and not vice versa. There fore, the contention of the learned counsel for the appellant that proceedings in Case No. 80/1 should have been stayed pending the disposal of Suit No. 151/1 of 1958 being misconceived, is untenable. In fact both the suits proceeded together and were decided on the same day.

6. In Case File No. 151/1 Rehan plaintiff was granted a decree for the whole of the land sought to be pre-empted, on the ground that two of the four vendees, namely, Khaista Khan and Rokhan had admitted the claim of Rehan Khan plaintiff and had confessed judgment in his favour while with regard to the remaining 1/3rd part of the land, sold to Muhammad Zaman and Qazi Azizur Rehman, since Muhammad Zaman had joined, with himself Qazi Azizur Rehman who according to the learned trial Judge was a stranger, therefore, on the application of the Doctrine of Sinker; Muhammad Zaman also lost his right and therefore, decree as prayed for was passed against all the four vendee-defendants. Muhammad Zaman did not file any appeal in the Court of District Judge. Qazi Azizur Rehman, vendee alone challenged the finding of the learned trial Judge, as against him. The learned Additional District Judge who heard that appeal, by his judgment dated 2-12-61 accepted the claim hence appeal of Qazi Azizur Rehman and held that that he having become a co-sharer in the suit khata could defeat the right of pre-emption of plaintiff Rehan with no better qualification. In the result the plaintiff's suit to the extent of Qazi Azizur Rehman's share in the suit land was dismissed. Suit No. 80/1 was dismissed by the learned trial Judge on 8-5-1961 on the ground that plaintiff had failed to prove his right of pre-emption on the grounds taken by him in his plaint. His appeal was also dismissed by the learned Additional District Judge Peshawar on 2-12-1961. The revision petition of Rehan was also dismissed by a learned Single Judge of this Court. He then preferred L. P. A. No. 40/68 which being incompetent was dismissed by a learned Division Bench of this Court, with the result that the claim of Qazi Azizur Rehman that he was also a co-sharer in the suit land, which in turn meant that the plaintiff being not invested with a superior right of pre-emption as against the vendee could not pre-empt the suit land, was confirmed.

7. Mr. Peer Bakhsh Khan, the learned counsel for the appellant further contended that decree in favour of Qazi Azizur Rehman whereby, his right and claim of co-sharer-ship in the suit land was confirmed by a learned Single Judge of this Court in Second Appeal was passed on 27-5-1968, whereas section 17 of the N.-W. F. P. Pre-emption Act was amended in 1967 and the amending Act was given retrospective effect, with the result that the vendee- respondent could not be deemed to have improved his status so as to defeat the right of the pre-emptor, in this case. We are afraid we cannot pursuade ourselves to agree with this argument of the learned counsel for the appellant. Before the amendment of section 17 of the N.-W. F. P. Pre-emption Act whereby subsection (2) was added thereto, so far as the vendee was concerned, he could improve his position against ,4 the pre-emptor before or even after the institution of the suit. By this amendment the vendee can now improve his status before the institution of a suit for pre-emption but not thereafter. In the instant case, the vendee had improved his status before the institution of Case No. 151/ 1 of 1958 by purchasing another piece of land in the same Khasra and Khata Numbers on 22-4-1957 i. e. more than 11 months before that Suit No. 151/1 was instituted. That sale, as indicated above, was also desired to be pre-empted by the plaintiff but he failed to achieve his object. Confirmation of the decree in favour of the vendee with respect to that land whether on 27-5-1968 or even thereafter, when L. P. A. No. 40/68 was dismissed on 6-12-1973, would lead to a logical consequence that the purchase of that land by Qazi Azizur Rehman vendee on 22-4-1957 had become unassailable and his improvement of status as such would date back to the time when he purchased that land and not to the time when the last effort of Rehan to substitute himself for Qazi Azizur Rehman finally failed. Even if for the sake of argument the date of decree of the Court of first instance which was passed on 8-5-61 is to be taken as the determining date for the relevant purpose, still the improvement in status of the vendee took place before the said amendment in Law, as by the subsequent decrees of the appellate Courts no new right was created but the original decree of the Court of first instance which endorsed the equality of the status of the vendee with that of the pre-emptor, was confirmed.

8. Result of the above is that we find no substance in this appeal. It is, therefore, dismissed. In the peculiar circumstances of the case, we make no order as to costs. K. B. A. Appeal dismissed.