P L D 1985 Supreme Court 215 (PLP)

SHAFIUR RAHMAN, J.-The vendee defendant in a pre-emption suit was granted leave to appeal to examine whether the High Court of Peshawar had in its judgment dated 27-1-1975, taken a correct view of section 29 of the N.-W. F. P. Pre-emption Act (hereinafter referred to a, the Act). The appellant purchased on the 27th of January, 1970 1/3rd share of Mst. Taj Bibi in Khasra Nos. 1742 and 1743 of Village Asotta, Tehsil Swabi, District Mardan: On the 15th of August, 1970 he purchased the remaining 2/3rd share in the same Khasra numbers from another co-sharer Afzal a brother of Mst. Tai Bibi. Subedar Meher Dill respondent instituted on the 23rd of January, 1971 civil suit (No. 38/1 of 1971) pre-emptiog the first sale. It appears that in resisting that suit the appellant claimed a superior right as he had, on account of the second sale, become the full owner of these two Khasra numbers. On such a disclosure having been made, the Court by an order dated 27-3-1971, stayed the suit (No. 38/1 of 1971) in terms of the requirement of section 29 of the Act. 7 he plaintiff thereupon instituted on 24th of February, 1971 another suit (No.. 93/1 of 1971) pre-empting the second sale on the ground of his superior right of pre-emption. While this suit was pending on 27-4-1971 the appellant acquired interest by exchange in the contiguous Khasra No. 1_721 from one Janas Khan. He resisted the claim of the plaintiff respondent in the second suit on the ground that by the first sale dated 27-1-1970 he had already become co-sharer and his rights were superior to that of the plaintiff-respondent and further that by the subsequent exchange dated 27-4-1971 he had become contiguous owner thereby equalling the right of the plaintiff-respondent. In the trial Court, the exchange completed after the institution of the second suit was made the basis for resisting the claim of the plaintiff-respondent. The. legal ground taken up for making such a claim was that subsection () of section 17 of the Act which was introduced by N.-W. F. P. Act VI of 1967 had disappeared with the repeal of the amending Act VI of 1967 by West Pakistan Ordinance XVIII of 1970. The trial Court disposed of this legal objection in the following words "In view of the promulgation of N.-W. F. P. Pre-emption (West Pakistan Amendment) Act, 1967, a vendee-defendant was refused the right of bringing any change in his status after the institution of a pre-emption suit against him. This Act was afterwards repealed by the West Pakistan Repealing Ordinance, 1970 i.e. West Pakistan Ordinance No. XVIII of 1970. But the amendment made in the N.-W. F. P. Pre-emption Act, by the N.-W. F. P. Pre-emption (East Pakistan Amendment) Act, 1967 shall stand good, notwithstanding the fact, that the amending Act was itself repealed by West Paldstan Ordinance No. XVIII of 1.970. This view is taken within the meaning of section 5 of the West Pakistan General Muses Act, 1956. This being the situation, the defendant vendee is not capable of making any change in his status after the institution of the suit on 24-2-1971, and the change of status so made on 27-4-1971 is of no avail to him". The second suit of the plaintiff-respondent was decreed on payment of the market value of the property. In the first appeal filed the appellant challenged the superior right of pre-emption of the plaintiff-respondent but this time it was done on the basis of the earlier purchase made by him, the subject-matter of Civil Suit No. 38; I of 1971 which had been stayed. The appellate Court disposed of this ground in the following words On an application submitted by the respondent today, I sent for the record of Suit No. 38/1 which was instituted by the respondent in the Court of the learned Civil Judge Swabi on 23-1-1971. A perusal of that suit will show that Subedar Mehrdil Khan the respondent had brought a suit for possession by pre-emption of the land conveyed by Mutation No. 5057 attested on 27-1-1970 but that suit was stayed under section 29 of the Pre-emption Act on 27-3-1971. 1t is thus evident that Mawaz Khan has not become a co-sharer in the suit Kbata because of the attestation of Mutation No. 5057 above as a suit for pre-emption of the land sold by Mst. Taj Bibi to Mawaz Khan through that mutation is pending adjudication." A second appeal was then filed by the appellant. Two grounds were taken up for chahenging the decision of the Courts on the issue of superior right of pre-emption of the plaintiff-respondent. The first was that on the strength of Mutation No. 5057 attested on 27-1-1971 the appellant had become co-sharer and the fact that a suit regarding it was pending and had been stayed would not deprive him of the rights acquired under the sale. The second ground was that it was the second suit which was liable to be stayed till the decision of Suit No. 38/1 and if that had been done, the appellant would have succeeded in the first suit on the strength of the second sale. The learned Judge of the High Court rejected this contention observing as follows- "It would thus be seen that in order to defeat the suit of respondent (Suit No. 38/1/71) appellant was claiming ownership in Khata in view of the said sale transaction between him and Sher Afzal acrd if this be so then the provisions of section 29 of the Act were clearly attracted to that suit. A look at the language of section 29 would show that if in suit for pre-emption a person bases a claim or plea on a right of pre-emption derived from the ownership of agricultural land or other immovable property, and the title to such land or property is liable to be defeated by the enforcement of a right of pre-emption with respect to it, the Court shall not decide the said claim or plea until . . . . . . any suit for the pre-emptiori of said land has been finally decided. The fact that the appellant had, in his written-statement filed in Suit No. 38/1/71 claimed to have become co-owner in the Khata, in view of the purchase by him of some land from Sher Afzal would evidently attract to that suit the, provisions of section 29 of the Act. And thus the two Courts below seem to have rightly stayed that suit." As the leave to appeal has been granted only to examine the true' meaning and effect of section 29 of the Act in the context of section 10 of C. P. C. the ground taken up in the trial Court with regard to dis appearance of subsection (2) of section 17 need not be dealt with at any length. Beside, we find that this specific ground has already been dealt with by this Court in the case of Abdul Majid etc. v. Shahzada Asif Jan etc. (PLD1982SC82). Section 16 of the Act provides‑ "

16. Effect of loss of right by pre‑emptor prior to decree.‑No decree for pre‑emption shall be passed in favour of any person unless he has a subsisting right of pre‑emption at the time of the decree, but where a decree for pre‑emption has been passed in favour of plaintiff whether by a Court of first instance or of appeal, the right of such plaintiff shall not be affected by any transfer or loss of his interest occurring after the date of such decree." Explanation.‑For the purposes of this section, no pre‑emptor plaintiff shall be deemed to have lost a subsisting right of pre‑emption by reason of the fact that the vendee defendant has after the expiry of the period of limitation provided for a suit for pre‑emption, transferred the property in dispute to a person having a right of pre‑emption equal or superior to that of the plaintiff." (Added by Act XII of 1972 N.‑W. F. P.) The language of this section is peremptory. It requires the pre‑emptor to maintain his right of pre‑emption till the date of decree. Therefore, any transaction made after the institution of the suit, or even before the institution of the suit, which has the effect of adversely affecting his right of pre‑emption must be taken note of, legally recognised and given effect to. This of necessity involves the determination of questions of title arising during the pendency of the suit, recognizing the transactions pendente lite. One of the alternatives could have been to decide the legal effect of such transactions by consolidating the suits but then such a course would have on the one hand made the proceedings endless and on the other arrayed before the Court parties with extreme diversity of interests. In order to obviate such a situation and to keep the cause of action, the suit property, and the parties different and distinct relatable to each separate transaction, section 29 was introduced. Its language reproduced in extenso hereunder shows that it modifies and substitutes the principle` s forming the basis of section 10, C. P. C. "Sect on

29. No decree be passed until pre‑emptor's basic right upheld. (1) If in any suit for pre‑emption any peraon bases a claim or a plea or a right of pre‑emption derived from the ownership of agricul tural land or other immovable property, and the title to such land or property is liable to be defeated by the enforcement of a right of pre‑emption with respect to it, the Court shall not decide the claim or plea until the period of limitation for the enforcement of such right or pre‑emption has expired and the suits for pre emption (if any) instituted with respect to the land or property during the period have been finally decided. (2) If the ownership of agricultural land or other immovable property is lost by the enforcement of a right of pre‑emption, the Court shall disallow the claim or plea based upon the right of pre‑emption derived therefrom." The situation faced in the present appeal is not the only one provided for in section

29. The pre‑emptor may himself be claiming a right ; preempt arising out of a recent sale the period of limitation for challenging, which under the Pre‑emption Law may not have expired when the suit is brought. This provision will apply to such a right also as it will not be an indefeasible right. Similarly, a defendant who resists a pre‑emption claim on the basis of a similar sale must show that his right thereunder is indefeasible. The amendment in section 17 subsection (2) has also a tearing on the case as it provides that‑ "(2) Any improvement, otherwise than through inheritance or succes sion, made in the status of a vendee‑defendant after the institution of a suit for pre‑emption shall not affect the right of the pre‑emptor plaintiff in such suit." In the absence of this provision and on the strength of section 29, a plaintiff would have been obliged to challenge even the exchange that was entered into after the institution of the suit b.‑cause under section 16 he had to possess a superior right till a decree was passed in his favour. Before the N.‑W. F. P. Pre‑emption Act was promulgated and enforced in the North‑West Frontier Province in 1950, the Punjab .Pre emption Act was in force there. In 1924 a difficulty had arisen in administering the Punjab Pre‑emotion Law and it had arisen on account of conflicting deci sions in the cases of Nadir 4li Shah v. Wali etc. (5 1 L R 486) and Kehar Singh v. Mahman Singh (1908 P R 140). In order to resolve this conflict and to restore the pristine efficacy of the law of pre‑emption by an amending Act section 28‑A was added. The object and reasons of this amendment in the Punjab Pre‑emption Act explain with exactness the genesis and the purpose of the amendment in the following words :‑ "The High Court of judicature of Lahore has laid down in the case of Nadir Ali Shah v. Wali etc. published at page 486 of Indian Law Reports Series, Vol. 5, 1924, that a successful pre‑emptor is vested with the rights of the vendee not from the date of the sale but from the date on which he satisfies the conditions of the decree in his favour. Consequently in order to defeat the law *of pre‑emption, a man has only to split up his transaction into two parts, purchase one kanal of land on the first day and the balance on the second day. If a suit for pre emption is brought with respect to the second sale by the village proprietors, he can successfully defend the suit on the ground that he acquired proprietary rights in the village one day prior to the second purchase. This means that to all intents and purposes the Punjab Pre‑emption Act stands repealed. The amending Bill does not in any way either extend or narrow down the scope of the Punjab Pre‑emption Act. The main object of the Bill is to prevent the existing provisions of the law of pre‑emption being defeated. The amending Bill will make it impossible for the purchaser to defeat the law of pre‑emption by splitting his transac tion into two parts, and to retain the property acquired by his second purchase, even though he may subsequently lose the property acquired by his first purchase. The amending Bill will thus restore the law of pre-emption to the same position as it occupied when the case of Kehar Singh v. Mahman Singh etc. published at page 140 of the Punjab Record 1908 was decided by Shah Din, J.". The result of this amendment in the Pre-emption Law was that a preemptor pre-empting a sale must have an indefeasible right of pre-emption under the Pre-emption Law and a defendant pleading protection for the sale must have an indefeasible right under the Pre-emption Law. If the pre-emptor claims a superior right of pre-emption on the basis of a purchase which itself is or likely to be subjected to a pre-emption claim then his claim itself would not be decided unless the claim against him is adjudicated upon and upheld or rejected. Similarly, if a vendee bases his claim on a transaction which itself is liable to be defeated by the exercise of a right of pre-emption then unless such a right or claim becomes indefeasible under the Pre-emption Law he cannot be allowed to set up a claim on its basis. To achieve this object in judicial proceedings, section 28-A of the Pre-emption Law was inserted and was also incorporated as section 29 of the N.-W. F. P. Pre-emption Act. It is an instance of express departure from the general principles of section 10, C. P. C. with regard to the stay of the suit subsequently instituted and is confined to pre-emption claim and pleas raised in defence against it. The view taken by the High Court in applying section 29 of the Act suffers from no legal infirmity and this appeal must fail which is hereby dismissed with costs. M. s. A. Appeal dismissed.