P L D 1975 Lahore 592 (PLP)

S M. Bashir for Appellant. M. A. .4ziz for Respondent. Date of hearing ; 7th June 1974. The facts giving rise to this appeal may be briefly summarized Muhammad son of Pir Bakhsh sold his 3/8th share in the land inherited by him from his father to Torabaz Khan respondent on the 15th of August 1959. This transaction of the sale was pre-empted by Abdul Majid appellant on the ground that he being a co-sharer in the Khata has a preferential right of pre-emption The claim of being of a co-sharer was on two-fold ground; Firstly because of purchase of land in the same Khata on the 30th of May 1959 from Maula Bakhsh brother of Hayat Muhammad, and secondly by another purchase of 1/4th share of Hayat and Fateh Muhammad sons of Karam a co-sharer of Pir Bakhsh the father of the vendor Hayat Muhammad on the 1st of September 1959. During the pendency of the suit the acquisition of holding by purchase from Maula Bakhsh by Abdul Majid on the 30th of May 1959 was successfully pre-empted by Hayat Mohammad vendor. A plea was raised at the trial that since the preemptor has to retain qualification of preferential right of the pre-emption not only on the date of the suit (which qualification admittedly the pre emptor had by reasons of purchase from Maula Bakashi. but also he should continue retaining the qualification till the date of decree and because Abduf Majid bad lost the purchase from Maula Bakhsh, he had lost the preferential right of pre-emption as a co-sharer in the Khata. The contention raised on behalf of the pre-emptor that he being a purchaser of 1/4th share of the Khata from Hayat and Fateh Moammad sons of Karam on the 1st of September 1959 and continued to be co-sharer despite having lost tie part of the land purchased earlier from Maula Bakhsh was rejected and the suit was dismissed. The pre-emptor has remained unsuccessful in his appeal before the learned District Judge. Hence this second appeal.

2. There is no denying the fact that 'section 28-A of the Punjab Preemption Act contemplated that both in the case of the pre-emptor and the vendee if they lose the land on the basis of which the former was exercising his right or the latter resisting the attack, the claim or the plea was liable to be dismissed (See Thakur Madho Singh and another v. Lt. James R. R. Skinner and another (A I R 1941 Lah, 433). In view of the dictum above and my findings in Regular Second Appeal No. 384 of 1961 affirming the decree of possession through pre-emption in favour of Hayat Muhammad son of Par Bakhsh in respect of the purchase by the pre-emptor Abdul Majid from Maula Bakhsh, the qualification of being a co-sharer as such, is not denied to have disappeared, during the pendency of the suit. The only point requiring consideration is whether the second purchase made by Abdul majid from Hayat and Fateh Muhammad sons of Karam of their 1/4th share in the same Khata on the 1st of September 1959 about 16 days after the sale enures for the benefit of the pre-emptor, despite the fact that he hat lost the qualification of preferential right being a co-sharer in the Khata to respect of the purchase mad-- by him from Maula Bakhsh on the 30th of May 19.59. Admittedly, it is not open to a pry-emptor to defeat a vendee by improving his position after sale. However, by virtue of section 21-A of the Punjab Pre-emption Act, it is open to a vendee to defeat a pre-emptor by improving his status but he could do this only up to the institution of the suit. Now if the pre-emptor has lost his first qualification, the second qualification was not in existence at the time of the sale and it naturally cannot enure for the benefit of the pre-emptor. I am fortified in this view by the following terse observations in Faiz Muhammad v Fajar Ali Khan and another (A I R 1944 Lah, 172): "According to that section (section 4 of the Punjab Pre-emption Act), a right to acquire a property by right of pre-emption arises on the date of sale. It, therefore, follows that it must have been in existence on that date. In other words, a cause of action in favour of a pre-emptor can only arise on the date of the sale of the property. It is a complete cause of action by itself and although it may cease to exist by the preemptor ceasing to own the property which gave him a right to preempt, one must necessarily look to his capacity to sue i.e. to his qualification at the date of the sale alone, if the right which he wishes to exercised is to be enforced. If the right of the preemption is declared by the section 15 and 16 of the act to vest in certain person at the time when the sale is effected, any subsequent act of the preemptor is acquiring some other property or right which might have furnished him with the additional qualification if he had done so before the date of the sale can be of no avail to him in either enlarging or improving his cause of action which had already come into existence and cannot be held to confer a superior status on him. This should be judged at the date of the sale so far as the pre-emptor is concerned and at no other later period. Any subsequent acquisition of the property or right by him would make him the owner of the property or right but cannot possibly add to his qualifications as a pre-emptor. If the right to pre-empt cannot be acquired subsequent to the sale which a person wishes to pre-empt, the effect of a subsequent purchase of the property or right cannot equally improve his status and be taken into consideration in deciding the question as to what right he had to pre-empt the property."

3. The upshot of the above discussion is that the appeals fails and is dismissed, leaving the parties to bear their own costs. S. A. H. Appeal dismissed.