P L D 1988 Supreme Court (AJ&K) 173 (PLP)

RAJA MUHAMMAD KHURSHID KHAN, C.J.‑‑Both the above captioned appeals, by leave, arise out of the common Judgment passed by the High Court on 22‑7‑1986. We, therefore, propose to dispose them of by this single order. The controversy has arisen in the following way: Mst. Gulzar Begum and Abdur Rehman, appellants (in Appeal No.9 of 1987), transferred to Zahid Hussain and others, respondents herein, the suit land measuring 2 kanals forming part of the land measuring 15 kanals 3 marlas comprising survey No.369 situate in the area of village Sarsala, Tehsil Bhimber, through a registered sale‑deed, for an ostensible price of Rs.15,

000. Sher Baz sought to pre‑empt the sale‑deed by way of a regular suit instituted in the Civil Court of original jurisdiction, Bhimber, on 18‑2‑1981. During the pendency of .the suit, Zahid Hussain, respondent, (one of the, vendees), it is claimed, gifted away the land to the extent of his share to respondents, Khaliq Hussain and Malik Hussain. Through another registered deed the remaining vendors and Khaliq Hussain and Malik Hussain to whom the suit land is stated to have been transferred by Zahid Hussain (one of the original vendees), by way of a gift, the entire land was transferred back to Mst. Gulzar Begum and Abdur Rehman, the original vendors. The above all was done within the period of one year from the date the sale‑deed was registered in favour of original vendees. On becoming aware of this, Sher Baz, pre‑emptor, applied for permission to amend the plaint so as to implead Khaliq Hussain and Malik Hussain, respondents, as a party. Other vendors were already on the record. It was also claimed by Sher Baz that the doctrine of lis pendens applies to the alienation of the land made in favour of Khaliq Hussain and Malik Hussain during the pendency of the suit. Amendment was allowed in the terms indicated above. The learned Sub‑Judge found that the plaintiff had a right of prior purchase. It was also held that there was no dispute about the amount of sale consideration. The suit of the plaintiff, however, was dismissed on the ground that since the land was retransferred to the vendors, there remains no cause of action with Sher Baz against the second transaction and, thus, Sher Baz stands non‑suited. This finding could not successfully be assailed in first appeal before the District Judge Mirpur. His appeal was disallowed on 29‑4‑1986. Sher Baz then went up in second appeal before the High Court. The High Court while accepting his appeal, partly vide order dated 22‑7‑1986, allowed the pre‑emption decree in his favour to the extent of the share of Zahid Hussain. Hence this appeal to assail the said judgment of the High Court. We have heard the learned counsel for the parties. Raja Muhammad Siddique, the learned counsel for Mst. Gulzar Begum and another (in Appeal No.9 of 1987), frankly conceded that the transfer of the land by way of gift to Khaliq Hussain and Malik Hussain by Zahid Hussain (one of the vendees) is not only hit by the doctrine of lis pendens but it has also not been made in recognition of the right of prior purchase of Khaliq Hussain and Malik Hussain. (they did not possess such a right); and so the pre‑emptive right of the appellant, Sher Baz, is in no‑way affected adversely. He frankly conceded that decree in favour‑of Sher Baz to the extent of the share of Zahid Hussain passed by the High Court is quite in accordance with law and does not call for any interference. He, thus, did not press the appeal moved by Sher Baz. It is a settled principle of law that if during the pendency of suit for pre‑emption the vendee sells his share within limitation prescribed for a pre‑emption suit to a person having equal or superior right to him, his suit becomes incompetent. We are supported in our view in ‑Abdul Aziz and others v. Abdullah and others A I R 1925 Lah. 413; Pandit Harbhagwan Das v. Sardar Partap Singh A I R 1938 Lah. 242; Mst. Fateh Bibi v. Ahmed Khan P L D 1971 Lah. 171; Rehmat Ali v. Ahmed Yar 1979 C L C 690 and Ghaus Bakhsh v. Wali Muhammad 1979 C L C

880. In all these cases it was held that if the vendee qua any sale passes on the land purchased by him to another person, having a right of pre‑emption equal or superior to the one who pre‑empts the sale by means of a suit, his suit cannot succeed. The right of pre‑emption, however, cannot be defeated by means of resale of the property in favour of the vendor. We are supported in our view in Muzaffar Khan v. Muhammad Khan 38 PLR 224; Imami v. Allah Diya 40 I C 767 and Sukha v. Arura Mal PLR 1908 No.

156. In these cases it was observed that the right of pre‑emption cannot be defeated by means of resale of the property in favour of the vendor. There is a lot of wisdom behind it. The wisdom behind it is that after the sale of the property the vendor is not in a position to seek pre‑emption. Therefore, it cannot be said that the property sold batik to him is in recognition of his prior right of purchase. Such a transfer is, in. a way, fraud on the statute to non‑suit the pre‑emptor by illegitimate means which is not permissible. This statement of law admits of no exception. In, view of the above statement of law the transfer of the land in dispute in favour of original vendors, namely, Mst. Gulzar Begum and Abdul Rehman, would not affect adversely the claim put forth by pre‑emptor Sher Baz. Since it is not disputed that the appellant had a right of pre‑emption against the original vendees and since there is also no dispute about the sale consideration which comes to Rs.15,000, for the reasons stated above we have no alternative but to accept the appeal of Sher Baz in respect of the entire land. For the foregoing reasons we allow the appeal titled Sher Baz v. Mst. Gulzar Begum and others (Civil Appeal No.8 of 1987) and while setting aside the judgments of all the Courts below, allow a decree of the entire suit land which comes to 2 kanals and forms the part of land measuring 15 kanals 3 Marlas, comprising survey No.

369. Sher Baz shall deposit the decretal amount on or before 30th of April, 1988, failing which his suit shall stand dismissed. Resultantly, the appeal entitled Mst. Gulzar Begum and another v. Sher Baz and others (Civil Appeal No.9 of 1987) fails and is hereby dismissed. We make no order as to the costs. M.B.A./217/S.C.A. Appeals dismissed.