P L D 2010 Supreme Court 608 (PLP)

ASIF SAEED KHAN KHOSA, J.

On 29-1-1980 the predecessor-in-interest of the appellants namely Mehr Din and his three cousins, i.e. respondents Nos.2 to 4 jointly purchased 14 Kanals of land situated in the revenue estate of Ghazi Kohli, Tehsil Taxila, District Rawalpindi for a sum of Rs.8,000 through a mutation. On 18-1-1981 respondent No.1 filed a suit for possession through pre-emption against the said sale and soon after filing of that suit their share of the suit-land was sold by the respondents Nos.2 to 4 in favour of the said Mehr Din. Respondent No.1 had maintained that he had a superior right of pre-emption as against Mehr Din because of his being a collatoral of the vendor and also being a co-sharer whereas Mehr Din had maintained that he was a tenant of the land purchased by him and, thus, he possessed a right of pre-emption superior to that of respondent No.1. On 3-3-1983 the suit filed by respondent No.1 was dismissed by the learned Civil Judge, Rawalpindi and the judgment and decree so passed was assailed by respondent No.1 through an appeal which was allowed by a learned Additional District Judge, Rawalpindi vide judgment dated 31-3-1984 decreeing the suit filed by respondent No.1. The appellants, in their capacity as the legal heirs of the original vendee namely Mehr Din, assailed the said judgment and decree before the Rawalpindi Bench of the Lahore High Court through a revision petition which was allowed and the case was remanded to the learned Additional District Judge, Rawalpindi for decision afresh. After the remand the learned Additional District Judge, Rawalpindi again allowed respondent No. l's appeal vide judgment dated 19-12-1997 decreeing the suit for possession through pre-emption filed by him. Thereafter the appellants once again approached the Rawalpindi Bench of the Lahore High Court in that regard through a revision petition which was dismissed by the Rawalpindi Bench of the Lahore High Court vide judgment dated 20-5-2004 against which leave to appeal was granted by this Court on 2-2-2006. Hence, the present appeal before this Court.

2. We have heard the learned counsel for the parties at some length and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that the predecessor-in-interest of the appellants namely Mehr Din was a tenant of the suit-land and, thus, his right of pre--emption was superior to that claimed by the respondent No.1. He has also argued that the other vendees of the sold land, i.e. respondents Nos.2 to 4 had sold their shares of the relevant land in favour of Mehr Din before expiry of the period of limitation of filing a suit for possession through pre-emption and, thus, the said Mehr Din could defend a suit for pre-emption regarding the entire sale on the basis of his superior right of pre-emption as a tenant. It has lastly been argued by the learned counsel for the appellants that the learned Courts below were not justified in applying the doctrine of sinker against Mehr Din. In support of the above mentioned contentions he has relied upon the case of Piara Khan v. Bashir Ahmad 1991 SCMR 2107, Ghulam Rasool v. Muhammad Latif PLD 1993 SC 52, Muhammad Ramzan v. The Member Board of Revenue 1993 PSC 1596, Ghulam Muhammad v. Shamim Ahmad Khan 2007 SCMR 1028 and Muhammad Hussain v. Muhammad Khan 1989 SCMR 1026. As against that the learned counsel for respondent No.1 has argued that the sale in issue in favour of Mehr Din and respondents Nos.2 to 4 was a joint and indivisible sale and the price for the said purchase was paid in lump sum by Mehr Din and respondents No.2 to 4 and, therefore, the right of pre-emption claimed by Mehr Din could not be treated as divisible from that of respondents Nos.2 to

4. It has also been maintained by him that respondents Nos.2 to 4 were total strangers possessing no recognized right of pre-emption and thus, by associating with the said respondents Mehr Din's right of pre-emption had sunk to the level of respondents Nos.2 to

4. It has been pointed out by the learned counsel for respondent No. 1 that the said respondent was not only a collateral of the vendor but he was also a co-sharer and both the said rights of pre-emption possessed by respondent No 1. were not matched by Mehr Din whose right of pre-emption as a tenant had sunk to the level of respondents Nos.2 to 4 who were total strangers possessing absolutely no right of pre-emption at all. He has, thus, canvassed that the Rawalpindi Bench of the Lahore High Court was quite justified in dismissing the appellants' revision petition.

3. After hearing the learned counsel for the parties and going though the record of this case as well as the cited precedent cases with their assistance we have straightaway observed that respondents Nos.2 to 4 were not possessed of any recognized right of pre-emption at all whereas the predecessor-in-interest of the appellants namely Mehr Din had claimed a superior right of pre-emption on the basis of being a tenant of the suit land. The law is quite settled by now that in order to succeed in a suit for possession through pre-emption a party has to have a superior right of pre-emption at the time of the sale, at the time of filing of the suit and also at the time of final decision of the suit. In the case in hand the appellants' predecessor-in-interest namely Mehr Din had jointly purchased the relevant land with respondents Nos.2 to 4 who were expressly found by the learned trial Court as well as by the learned appellate Court to be total strangers possessing no recognized right of pre-emption at all. The said respondents had never asserted any right of pre-emption in the two written statements filed by them before the learned trial Court and the finding of the learned trial Court in that regard had never been challenged before any higher Court either by the said respondents or by respondent No.1. In that backdrop it is quite evident that at the time of the sale the right of pre-emption claimed by Mehr Din on the basis of his being a tenant had sunk to the level of respondents Nos.2 to 4 who possessed no recognized right of pre-emption and, thus, upon application of the doctrine of sinker the said Mehr Din also possessed no right of pre-emption at all at the time of the sale.

4. It appears that soon after filing of the suit for possession through pre-emption by respondent No.1 the predecessor-in-interest of the appellants namely Mehr Din had tried to improve his position by purchasing the share of the relevant land from respondents Nos.2 to 4 but that improvement of his position was of no avail to him because by virtue of 'the provisions of section 21-A of the Punjab Pre-emption Act, 1913 any improvement made in the status of a vendee after filing of a suit for possession through pre-emption is to be of no use to the vendee. Apart from that any improvement in the status of Mehr Din after filing of the suit for possession through pre-emption by respondent No.1 could not retrospectively improve Mehr Din's status at the time of the sale when his status had sunk to the level of respondents Nos.2 to 4 and he had been denuded of any right of pre-emption possessed by him at all. It was never disputed by the appellants at any stage of this case that respondent No.1 was a co-sharer and his claim regarding being a collatoral of the vendor was also never seriously contested by the appellants. In this view of the matter we find that the learned Additional District Judge, Rawalpindi as well as the Rawalpindi Bench of the Lahore High Court were quite justified in applying the doctrine of sinker and in concluding that respondent No.1 was possessed of a better right of pre-emption as against the predecessor-in-interest of the present appellants namely Mehr Din.

5. The precedent cases cited by the learned counsel for the appellants have been found by us to be missing the point of controversy in the present case. The discussion about lis pendens in some of those cases is hardly relevant to the present case and the precedent cases cited about improvement in the status of a pre-emptor have been found by us to be not strictly relevant to the controversy in hand because the present case is a case of an abortive improvement of the status of the vendee.

6. For what has been discussed above we have failed to find any merits in this appeal and the same is, therefore, dismissed. M.H./G-4/S Appeal dismissed.