1995 PLP 1385 (SCMR)

Section 17. Transfer of incumbrance to new allotments.‑‑Subject to any rules that may be made under section 29, when the holding ‑of a land‑owner or the tenancy of a tenant brought under the scheme of consolidation is burdened with any lease, mortgage or other incumbrance, such lease, mortgage or other incumbrance shall be transferred and attached to the holding or tenancy allotted under the scheme or to such part of it as the Consolidation Officer may direct; and, thereupon, the lessee, mortgagee or other incumbrancer, as the case may be, shall cease to have any right in or over the land from which the lease, mortgage or other incumbrance has been transferred:' It may be noticed that section 15 envisages taking of three actions by the Consolidation Officer, namely: (i) to announce the decision; (ii) to demarcate the boundaries of the holdings, if necessary; and ,(iii) to cause to be prepared a new record‑of‑rights in accordance with the scheme. Explanation appended to the above section provides that such record‑or‑rights shall have the same force as the record‑of‑rights which it purports to replace.. It may further be noticed that section 16 deals with rights of land owners and tenants after consolidation by providing that they shall have the same rights in the holding or land allotted to him in pursuance of a scheme of consolidation as he had in his original holding or tenancy, as the case may be. It may also be pointed out that section 17 of the Ordinance deals with the transfer of incumbrance to new allotments by providing that subject to any rules made under section 29, when the holding of a land‑owner or the tenancy of tenant brought under the scheme is burdened with any lease, mortgage or other incumbrance, such lease, mortgage or other incumbrance shall be transferred and attached to the holding or tenancy allotted under the scheme or to such part of it as the Consolidation Officer may direct; and, thereupon , the lessee, mortgagee or other incumhrancer, as the case may be, shall cease to have any right in or over the land from which the lease, mortgage or other incumbrance has been transferred. It is not necessary to refer to the other provisions of the Ordinance. In our view, sections 15, 16 and 17 of the Ordinance have direct bearing to the controversy in issue. In this regard, Mr. Asif Saeed Khan Khosa, learned ASC for the appellants, has referred to the case of Qaim Din v. Said Ahmad and another (PLD 1967 Lahore 1171), the case of Manzoor Hussain and others v. Sajawal and others (1983 SCMR 465), the case of Muhammad Akmal v. Muhammad Bashir 1982 CLC 279 and the case of Fazal Ahmad and 2 others v. Karam Dad and 15 others (1986 CLC 1188). The judgment in the above first. case, which was rendered by Karam Elahi Chauhan, J. (as his Lordship then was), is the leading judgment on the subject as the same has been referred to and relied upon in the above subsequent judgments. It will, therefore, be necessary to refer the facts and the ratio decidendi in detail of the above case. In the above case the facts were that one Nawab Khan, defendant No.1, vendor sold for an amount of Rs.5,500, an area of 17 Kanals 2 Marlas located in Khata No..88/415 to 417 and consisting of Khasra Nos. 614, 563, 572 and 622 as per Jamabandi for the year 1946‑47 situated in Village Bohar, Tehsil and District Sialkot, hereinafter referred to as the suit land. The, purchaser was Qaim Din, defendant No.2. One Said Ahmad brought a suit for pre‑emption of the above land. It appears that during the pendency of the suit, the suit land went under consolidation proceedings and the vendee in lieu thereof was given another piece of land bearing Khasra Nos. 117, 122, 123 and 318. Thereupon, Said Ahmad, the plaintiff, amended the plaint, wherein he claimed a decree for both' types of land. The trial Court decreed the suit on 9‑11‑1955 with a direction that the decree shall include both the lands, namely, the old and the new and the plaintiff would be entitled to get possession of the new land which had been allotted to the vendee, respondent No.2, in lieu of the old land. The vendee filed an appeal which was dismissed by the Additional District Judge, Sialkot, on 20‑5‑1957. After that the matter was brought before the Lahore High Court through a regular second appeal, which was heard by Karam Elahi Chauhan, J. His Lordship, while affirming the above concurrent judgments, discussed the various aspects of the pre‑emption law with reference to the case‑law as developed in the Sub‑continent over a long period by the superior Courts. As regards the controversy before his Lordship, the following conclusions were recorded:‑‑ "(c) That section 12 of the Punjab Consolidation of Holdings Act IV of 1936 also points towards the same thing. This section reads as follows:‑‑ 12. `Rights of land owners and tenants after. consolidation same as before.‑‑A landowner or a tenant shall have the same right in the holding or land allotted to him in pursuance of a Scheme of Consolidation as he had in his original holding or tenancy, as the case may be'." As the wording of the above sections shows, in the new land, a landowner shall have the same right which he had in the old land. Applying this section to the facts and the circumstances of the present case it will be noticed that the old land (which had been purchased by the vendee) was liable to betaken away from him by the pre‑emptor. 'Of that land, no doubt, the vendee was the owner for the time being, but his ownership was a contingent sort of ownership which could be substituted by that of the pre‑emptor. On the plain wording of this statute, therefore, a claim of pre‑emption can be laid by the pre emptor to the new land. Learned counsel with reference to certain authorities like Allah Dad and another v. Hukam Dad and others (PLD 1960 Lah. 900) and Uttam Sindh v. Sundar Singh and others (218 PLR 1914) argued that the right of pre‑emption is not a right in the land and, therefore, such a right cannot be said to exist in the new land just as it did not exist in the old land. In the old land his ownership was liable to be substituted by the pre‑emptor and the same will be the position of the new land. The question so far as this section, therefore, is concerned, is of fixing the rights of the vendees and not of anybody else. (d) Then there is section 13 of the Consolidation Act. This section reads as follows:‑‑ "13. Incumbrance of landowners and tenants.‑‑(1) If the holding of a landowner or the tenancy of a tenant brought under the scheme of consolidation is burdened with any lease, mortgage or other incumbrance, such lease, mortgage or other incumbrance shall be transferred and attached to the holding or tenancy allotted under the scheme or to such part of it as the consolidation officer, subject to any rules that may be made under section 26, may have appointed in preparing the scheme; and, thereupon the lessee, mortgagee or other incumbrancer, as may be, shall cease to have any right in or against the land from which the lease, mortgage or other inccumbrance has been transferred." (2) Notwithstanding anything contained in section 11 the Consolidation Officer shall, if necessary, put any lessee or any mortgagee or other incumbrance entitled to possession in possession of the holding or tenancy or part of the holding or tenancy to which his lease, mortgage, or other incumbrance has' been transferred under subsection (1). According to this section, if there was any incumbrance on the old land, the same shall be attached to the new land. The short question to be seen, therefore, is as to whether a right of pre‑emption is a burden on the land or not. On this point, I may reproduce a passage from a foreign judgment reported in Shri Audh. Behari Singh v. Gajadhar Jaipuria and others (AIR 1954 SC 417). In this case whole history of the law of pre‑emption was treated and it was held as follows: `The correct legal position seems to be that the law of pre‑emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner's unfettered right of sale and compels him to sell the property to his co‑sharer or neighbour as the case may be. The person who is a co‑sharer in the land or owns lands in the vicinity consequently gets, an advantage or benefit corresponding to the burden with which the owner of the property is 'saddled, even though it does not amount. to an actual interest in the property sold ........................ The upshot of the above discussion is that in the instant case the right of the plaintiff‑pre‑emptor was not lost merely because consolidation proceedings had taken place in the village. A plaintiff‑pre‑emptor in a case like this, where it is established as to which land the vendee has got in lieu of his old land can follow the new land in the hands of the vendee if otherwise he retained the qualification of a preferential pre emptor. In the present case, the plaintiff claimed pre‑emption on the basis of being a co‑owner in the Patti, If this qualification was fulfilled, then the plaintiff will not lose his right; because his case is that the new land still exists in the same Patti in which the old land was and in which he was still the owner." In the case of Manzoor Hussain and others (supra), this Court, while declining leave to appeal against an order of a learned Single Judge of the Lahore High Court dismissing a civil revision and affirming the order of the Civil Judge allowing amendment of the plaint on the ground that the original suit land had undergone a change in consolidation proceedings of the village and in place the vendee had been given some other land, referred the above Qaim Din's case. The author of the above order of this Court also happened to be Karam Elahi Chauhan, J. It is not necessary to refer to the above remaining cases of the Lahore High Court, wherein Qaim Din's case has been followed. 10. The ratio decidendi of the judgment in the case of Qaim Din (supra) appears‑to be that the right of a plaintiff/pre‑emptor is not lost merely because during the pendency of his pre‑emption suit because of consolidation proceedings, the suit land has undergone change inasmuch as in its place new land is allotted provided the plaintiff retains the qualification of a preferential pre‑emptor on the basis of which he had filed his above suit for pre‑emption. He can lay his hands on the newly allotted land in lieu of the suit land in execution of his pre‑emption dectee inter alia in view of sections 12 and 13 of the Punjab Consolidation of Holdings Act, 1936 (IV of 1936), which provisions are pari materia to sections 16 and 17 of the Ordinance. The rationale behind the above conclusion is inter alia contained in the judgment of the Indian Supreme Court in the case of Shri Audh Behari SinSh v. Gajadhar Jaipuria and others (AIR 1954 SC 417) that the law of pre‑emption imposes a limitation or disability upon the ownership of a property to the extent that it curtails or restricts the owners unfettered right of sale and compels him to sell the property to his co‑sharer or neighbour as the case may be. In consideration of the above burden, the person who is co‑sharer in the land or owns land in the vicinity, gets an advantage benefit corresponding to the burden with which the owner of the property is saddled even though it does not amount to an actual interest in the property sold. 11. It may be pointed out that neither Qaim Din's case nor the other aforecited cases on which reliance was placed, have dilated upon the controversy in issue, namely, that if a pre‑emptor's preferential right is founded on being a co‑sharer in the Khata and if on account of the consolidation proceedings, he ceases to be co‑sharer in the Khata before any decree in his favour could have been passed, in such event, whether he loses his preferential pre‑emption right. The above cases deal with the question, as to whether a pre emptor can lay his hand on the new land allotted in lieu of the suit land on account of the consolidation proceedings before a decree in his favour could have been passed. The above question has been answered in the affirmative but, at, the same time, as is evident from the quoted passage from page 1187 of the above judgment that the above conclusion is linked with the condition that the plaintiff should retain the qualification of a preferential pre‑emptor. If his suit was founded being a co‑owner in the Patti, he should retain the above qualification till his suit is decreed. 12. In the present case as pointed, out hereinabove, the appellants' suit was dismissed on 15‑6‑1974. It was decreed by the appellate Court first time on 18‑3‑1977. During the pendency of the above appeal before the Additional District Judge, the appellants ceased to have the qualification as being co- owners in the Khata on account of consolidation proceedings. If we were to hold that the dismissal decree can be equated with a decree decreeing the suit, in that event the appellants' pre‑emption right was .not affected as was held by the learned Additional District Judge, but if we were to distinguish between the above two categories of decrees, admittedly the appellants had ceased to have above qualification of being co‑sharers in the Khata before a decree was passed in their favour by the appellate Court. In this regard, Mr. Asif Saeed Khan Khosa has referred to the case of Baldeo Misir v. Ramlagan Shukul (supra) decided by a Division Bench of the Allahabad High Court, judgment of which was rendered by Sulaiman, J. The facts of the above case were that the pre‑emptor's suit was dismissed on 24‑7‑1920. However, the appellate Court decreed the suit by holding that under the custom recorded in the Wajib‑ul. Arz the plaintiff had a right 'of preference as against the defendant‑vendec though the latter was a co‑sharer in the same Thok. Against the above appellate judgment, the defendant‑vendee brought a second appeal before the Allahabad High Court and one of the grounds urged in the memorandum of appeal was that the plaintiff‑respondent had ceased to be co‑sharer at the time of lower appellate Court's decree and, therefore, his suit should have been dismissed. The above contention was repelled as under:‑‑ "It is well‑settled law that a plaintiff pre‑emptor in order to be able to maintain a suit for pre‑emption must establish his right to pre‑empt on 'three important dates. He must have a right of pre‑emption at the time when the sale took place otherwise he would have no cause of action at all. He must also have the same right at the time when the suit is brought or else he would have no locus standi to sue. A possible view to take might have been that nothing which happens after the institution of a suit can alter the position of the parties. But it has been held in a number of cases by this Court that it is incumbent on the plaintiff to prove that his right to pre‑empt continues up to the date when the decree ought to have been passed in his favour, namely, the date on which the case was disposed of by the first Court. It matters little whether the Court of first instance did actually dismiss or. decree his suit. The date of that Court's decree is the date on which, if the plaintiffs contention is correct, the decree ought to have been passed in his favour. This principle was the basis of the decision in the following cases:‑‑" 13. The above view was reiterated by the same Division Bench i.e. Lindsay and Sulaiman, JJ. in the case of Umrao v. Lachhman and others (AIR 1924 Allahabad 448). It was held that even subsequent to the first Court's decree cannot be taken into consideration in pre‑emption suits and, therefore, the loss of status of a co‑sharer after the date of first Court's decree will not disentitle the plaintiff to the right of pre‑emption. 14. The ratio of the above Allahabad High Court's case seems to be that the date of the Court's decree is the date on which if the plaintiff's contention is correct, the decree ought to have been passed in his favour 15. At this juncture, we may refer to some case‑law of this Court which have bearing to the controversy in issue. In the case of Mst. Bibi Jan and others v. Miss R.A. Monny and another (PLD 1961 SC 69) this Court was called upon to construe as to effect of subsection (2) of section 7 of the N.‑W.F.P. Pre‑emption Act, 1950. The facts of the case were that three houses situated in the municipal limits of Abbottabad were sold by registered sale deeds by the owners on 28‑3‑1951. On 27‑3‑1952 a pre‑emption suit was filed on the ground of contiguity of pre emptor's own property to that sold. While the suit was still pending, the North West Frontier Province Government issued notification under subsection (2) of section 7 of the aforesaid Act on 7‑11‑1951 exempting from pre‑emption the above houses. The question in issue before the Court was, whether the right of pre‑emption which was vested in the pre‑emptor at the time of filing of the suit could have been taken away by the N: W.F.P. Government during the pendency of the suit. It was held that a distinction was to be made between an exemption notification which might be issued after the passing of pre‑emption decree in favour of the pre‑emptor and a notification which might be issued during the pendency of the pre‑emption suit. It was also held that in the former case, the notification would not destroy the right of the pre‑emptor but in the latter case, the pre‑emptor lost the right on the date of the notification. It may be advantageous to reproduce the relevant portion of the above judgment, which reads as follows:‑‑ "The reported cases in which a decree had been obtained by the pre emptor in the Court of first instance before a notification under section 8(2) of the Punjab Pre‑emption Act, 1913, was issued, are easily distinguishable from those in which the right to pre‑empt had not yet been incorporated into a formal adjudication by a Court. In the former type of cases, it could be reasonably argued that the right to sue had merged in the decree of the Court, which would henceforth be regarded as the source of right, for the decree‑holder. Such a decree would, therefore, call for no interference on the ground that a notification subsequently promulgated, had taken away the right of pre‑emption in similar cases. The real difficulty arises in cases of the second type, of which Kaju Mal v. Saling Ram and Mohindar Singh v. Arur Singh may be cited as representative. With all respect, it seems to us that the learned Judges in those cases, interpreted the words of the notification too narrowly in their anxiety to save vested rights. The words of the notification appear to us to be plain and to be fairly susceptible of the interpretation that with the promulgation of the notification, all rights of pre‑emption would cease to exist, in the area mentioned in the notification, whether they pertained to sales that had already taken place or to those which are to be held hereafter. The only exception that could be recognized to this proposition would be in favour of cases in which decree had already been obtained by the pre emptors, prior to the notification: In the case of such an existing decree, it could not be said that the pre‑emptor was seeking to enforce ' his right to pre‑empt. The right had already been successfully asserted before the date of the notification. But in the absence of any such adjudication by a Court, there is no reason why full effect should not be given to the comprehensive words of the notification, so as to non- suit plaintiffs who may have filed suits for pre‑emption before the date of the notification, as well as debar all pre‑emptors from instituting suits to enforce their right of pre‑emption in the area in question, subsequent to the date of the notification. We are; consequently, disposed to uphold the decision of the Courts below that the right of pre‑emption possessed by the appellants was lost on the date the, impugned notification was issued in the present case. We, therefore, dismiss the appeal with costs. 16. The above view was reiterated by this Court in the case of Mistri Abdul Hamid v. Malik Amir Khan and others (PLD 1984 SC 418) and the case of Muhammad Iqbal v. Raja Muhammad Asghar and others (PLD 1986 SC 1). In the latter case the provision involved was section 8(2) of the Punjab Pre emption Act,‑ 1913 (I of 1913), which corresponded to above section 7 (2) of the aforesaid N.‑W.F.P. Pre‑emption Act. 17. We may observe that in the case of Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360),.the Shariat Appellate Bench of this Court maintained the judgment rendered by the Federal Shariat Court, whereby certain provisions of the Punjab Pre‑ .; emption Act and N.‑W.F.P.,, Pre‑emption Act were declared as repugnant to the Injunctions of Islam. The above judgment was to take effect from 31‑7‑1986. The question arose before this Court was, whether the rights of the pre‑emptors who had instituted the pre‑emption suits prior to the above target date, would be affected or not. The above question was inter alia answered in the case of Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287) by Muhammad Afzal Zullah, J. (as his Lordship then was) in the following terms:‑‑ . "The major trend of authority discoverable from all these cases is that: One, the mere filing of the suit or even lengthy proceedings thereon without a decree in favour of the plaintiff at any stage before 31‑7‑1986,` has not saved the application of the questioned law to it. Same is the position regarding the cases where without success to any stage, the suit stood dismissed before the target date or thereafter. ` Two, where a decree has been passed in favour of the plaintiff on. the basis of the said law, before the said date, the same law would continue to govern the case up to the Supreme Court and plaintiff would be entitled accordingly to defend the decree. Three, some of the cases have been remanded after the target date to the lower Courts for fresh decisions due to certain defects, after setting aside the judgment and decrees (even those in favour of the plaintiffs) passed before the target date." 18. After the case of Malik Said Kamal Shah (supra), the Punjab Pre emption Act, 1991, was enacted. Subsection (2) of section 35 of the same provided that notwithstanding anything contained in the Act in the cases and appeals filed under the Punjab Pre‑emption Act, 1913 (I of 1913), in which judgments and decrees had been passed before the first day of August, 1986, further proceedings if any relating to such cases and appeals shall notwithstanding repeal of the said Act, be governed and continue in accordance with the provisions thereof. In the case of Muhammad Sharif v. Muhammad Sharif (1992 SCMR 1129), which was decided on 2‑12‑1991 by a Bench of two learned Judges of this Court, the question arose, whether the decree referred to in subsection (2) of section 34 of the above Act means a decree in favour of the pre‑emptor or does it include a dismissal decree. The above question was answered as under:‑‑ "8. The words `judgments and decrees' in subsection (2) of section 34 are not qualified to imply judgments and decrees passed only in favour of the plaintiffs pre‑emptors. The. argument of the learned counsel for the respondent that this subsection applies to such judgments and decrees which have been passed in favour of the plaintiffs pre emptors, in view of the decision of this Court in Sardar Ali's case (supra) cannot be accepted. This new provision of law overrides the rule laid down by a number of judgments of this Court. The words `judgment and decrees" thus cover both the cases i.e. those passed for or against the plaintiffs pre‑emptors." 19. However, the above view was not adhered to in the subsequent cases. In this regard it may be pertinent to refer to the case of Rozi Khan and others v. Syed Karim Shah and others (1992 SCMR 445), which was decided on 20‑1‑1992 by a Full Bench headed by the then learned Chief Justice. This Court, while construing subsection (2) of section 35 of the N.‑W.F.P.. Pre- emption Act, 1987, which corresponded to the above provision of Punjab Pre emption Act, took a contrary view as under:‑‑ "In view of the foregoing we are inclined to hold that the words `judgments and decrees passed by the Courts' have become final" in subsection (2) of section 35 mean "those judgments and decrees wherein the suit of the pre‑emptor has been decreed by the Courts rendering it.' In so thinking we are fortified by the circumstance that this Court has always understood and consistently expounded the concept of finality in Pre‑emption Statutes on this premises (See, inter alia, Bibi Jan v. RA. Monny PLD 1961 SC 69 at pages 75/76; Sardar Ali v. Muhammad Ali PLD 1988 SC 287 at page 354)." 20. The above latter view has been followed in the case of Zafarullh Khan and others v. Muhammad Khan and others (1993 SCMR 696), the case of Ghulam Hussain and others v. Mushtaq Ahmed and others (PLD 1994 SC 870) and the case of Khushal Khan v. Rao Nawaz and 4 others (1994 SCMR 814). 21. In the case of Ali Hussain v. Mir Zaman (1987 CLC 127), the case of Sarwar Din and another v. Sikri Khan and another (1987 CLC 2476), the case of Lai v. Mst. Ghulam Ilahi and another (PLD 1989 Lahore 93) and the case of Muhammad Yaqoob v. Fazal Dad and others (PLD 1991 Lahore 197), it has been held by learned Single Judges of the Lahore High Court that Malik Said Kamal Shah's case (supra) would not be‑ applicable to the cases in which decrees were already passed in favour of the pre‑emptors. In other words, it was held that the above judgment would not be applicable retroactively. 22. The learned Judge in Chambers has inter alia referred to the following cases:‑‑ (i) Thakur Madho Singh and another v. Lt. James R.R. Skinner and another (AIR 1941 Lahore 433); In the above case which was decided by a Full Bench of the Lahore High Court, it has been inter alia held that a vendee can defeat the right of the pre‑emptor by improving his status at any time before the passing of the decree in the pre‑emption suit by the trial Court as the rights of parties are adjudicated upon by the trial Court alone and the function of the Court of appeal is only to see, what was the decree which the Court of first instance should have passed. It was also held that a resale by a vendee in favour of a person possessing equal right with the pre‑emptor during the pendency of the suit would lead to dismissal of the pre‑emptor's suit. Reliance was placed on the case of Mool Chand v. Ganga Jai (AIR 1930 Lahore 356). (ii) Faiz Muhammad v. Chaudhry Fajar Ali Khan and others (AIR (31) 1944 Lahore 172); in which a Full Bench of the Lahore High Court has made out a distinction between a vendee and a pre‑emptor and pointed out that vendee being on the defence is entitled to arm himself with a shield in order to protect his right which had accrued to him on the basis of his purchase contract and, therefore, he can improve his status/qualification before a pre‑emption decree is passed in favour of the pre‑emptor, but a pre‑emptor on the other hand is aggressor and if he wishes to dislocate the vendee, he must show a superior right to pre‑empt which he had on the date of sale continuous to remain superior at all the relevant times. It was further held that it is not permissible for a pre‑emptor to improve his position before the date of the institution of the suit after the sale as to defeat the improvement made by a vendee. (iii) Hans Nath and others v. Ragho. Prasad Singh (59 IA (1931‑32) JC 138); In the above case the facts were that after the institution of the suit the vendee acquired by a gift a small fractional share in the villages independent of his purchase in the property subject of pre‑emption. The suit of the pre emptor was dismissed by the Courts below. The matter, was taken up before the Privy Council. Their Lordships, while dismissing the appeal, observed as follows:‑‑ "Apart from these cases the cursus curiae is, their lordships think, clearly against the contention of the appellants. It was held as long ago as 1899 by Scratchy, C.J. and Banerji, J. that a partition of the village effected after suit filed, but before decree, deprived the pre‑emptor of his right: Ram Gopal v. Piari Lal (1899) I.L.R. 21 A. 441). Following this decision and quoting from the judgment of the. learned Chief Justice at p.444, a case almost precisely similar to the one now before their Lordships was decided in January, 1920, by Tudbull and Rafiq, JJ., who held that the vendee acquisition by gift of a share in the village pending suit defeated the claim of the plaintiff co‑sharer to pre emption: Bihari Lai v. Mohan Singh (I.L.R. 42 A. 268): It is not suggested that either of these decisions has been dissented from in principle in the Allahabad Court; on the contrary, the doctrine that the plaintiffs preferential right must be in existence at the date of the decree has been treated as the settled law of the province; Baldeo Misir v. Ram Legan Shukul (I.L.R. 45 A. 709); Qudratun‑Nissa. v. Abdul Rashid (I.L.R. 48 A. 616); Ram Saran Das v. Bhagwat Prasad (I.L.R. 51 A. 411):" 23. From the above discussed cases, it is evident that a pre‑emption suit is treated on a different footing than an ordinary suit inasmuch as the requirement that a pre‑emptor should prove that he has his preferential pre emption right at three stages i.e. on the date of the sale, on the date of the institution of the suit and on the date of passing of decree, is not applicable to an ordinary suit, in which a plaintiff is required to prove that he had cause of action on the date of the suit and subsequent event during the pendency of the suit or any other proceedings arising therefrom generally does not affect the plaintiff's cause of action unless otherwise is provided by the relevant statutes. This Court inter alia in the case of Mst. Bibi Jan and others (supra) and Mistri Abdul Hamid v. Malik Amir Khan and others (supra) made a distinction between a dismissal decree and a decree decreeing the pre‑emption suit, while construing section 7 (2) of the N.‑W.F.P.. Pre‑emption Act, 1950, and section 8 (2) of the Punjab Pre‑emption Act, 1913, respectively, which empowered the respective Provincial Government to exempt any property from the application of Pre‑emption Law. The above distinction was applied to by this Court in the case of Sardar Ali and others (supra) while considering the effects of the judgment in the case of Malik Said Kamal Shah (supra) rendered by the Shariat Appellate Bench of this Court, The above distinction between a dismissal decree and a decree decreeing a pre‑emption suit was adhered to b), this Court while construing section 35 (2) of the N.‑W.F.P. Pre‑emption Act, 1987, inter alia in the case of Rozi Khan and others (supra). The ratio decidendi of the judgments of the Allahabad High Court in the case of Baldeo Misir v. Remlagan Shukul (supra) and the case of Umrao v. Lachman & others (supra) that the date of the Court's decree is the date on which if the plaintiff's contention is correct, the decree ought to have been passed in his favour runs counter to the above consistent view of this Court. In the case of Hans Nath and others v. Ragho Prasad Singh (supra), the Privy Council tacitly approved above distinction by observing that "it was held as long ago as 1899 by Strachey C.J. and Banerji, J. that a partition of the village effected after the suit filed but before decree, deprived the pre‑emptor of his right: Ram Gopal v. Piari LAI (1899) I.L.R. 21 A. 441)." We are, therefore, of the view that in a pre‑emption suit a dismissal decree cannot be equated with a decree decreeing the suit as to its legal effects. 24. It may be observed what the judgment in the case of Qaim Din (supra) does not advance the case of the appellants as the ratio decidendi of the same seems to be that the preferential right of a pre‑emptor is not lost merely because during the pendency of his pre‑emption suit on account of the consolidation proceeding. the suit land has undergone change inasmuch as in its place new land is allotted, but this conclusion is dependent on the factum that the plaintiff/pre‑emptor remains the qualification of a preferential pre emption on the basis of which he had filed his suit for pre‑emption. In the case in hand, the latter condition is missing as it is an admitted position that before the pre‑emption decree was passed by the first appellate Court in favour of the appellants, they ceased to be co‑sharers in the joint. Khata by virtue of the consolidation proceedings pursuant to abovequoted section 15 of the Ordinance. In our view, sections 16 and 17 of the Ordinance do not help the appellants, they relate as to the rights and liabilities in the or in respect of the land referred to therein. They do riot deal with question of qualifications of the land owners for the purpose of claiming preferential pre‑emption rights. The appellants' case can be equated with the case of Ram Gopal v. Piari LAI referred to by the Privy Council in the case of Hans Nath and others v. Ragho Prasad Singh (supra), in which the pre‑emptor lost his preferential pre emption right after the filing of the pre‑emption suit by him on account of partition of the village before a decree in his favour could have been passed. 25. The upshot of the above discussion is that the judgment under appeal is unexceptionable, the above appeal has no merit. It is, accordingly, dismissed, with no order as to costs. M.BA./H‑227/SC Appeal dismissed.