2004 PLP 1270 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.‑‑‑

Abdul Yameen Khan, a pre‑emptor, seeks leave to appeal against the judgment, dated 4‑7‑2003 of a learned Division Bench of Peshawar High Court whereby his Writ Petition No.54 of 2003 was dismissed.

2. The background of the case is that one Muhammad Amin sold the property in dispute in favour of Abdul Subhan in village Chalyar, Tehsil Khwaza Khela, District Swat vide Mutation No.627 attested on 19‑9‑2000. Abdul Yameen Khan, the present petitioner, filed a pre emption suit on 5‑10‑2000 but the vendee Abdul Subhan transferred the property in favour of another Ashraf Ali Khan. The pre‑emptor filed an application for the impleadment of the second vendee which was allowed by the trial Court on 11‑6‑2001 but the same, in appeal, was disallowed by the learned Zila Qazi Shangla camp Swat vide judgment, dated 19‑4‑2002.

3. Abdul Yameen Khan pre‑emptor challenged the aforesaid order in a writ petition which was dismissed through judgment impugned.

4. The claim of the petitioner/pre‑emptor as put forth by Mian Muhammad Younas Shah, learned counsel for the petitioner is that Ashraf Ali Khan is a subsequent vendee and hence under the law the pre‑emptor is not bound to follow a pursuit against him and that his impleadment was more than the required. He further alleged that the pre emptor is required to file a pre‑emotion suit against the first vendee on, without even worrying about the subsequent vendees who are hit by the principle of lis pendens as laid down in section 52 of the Transfer of the Property Act.

5. Mr. Saeed Baig, learned counsel for the respondents has contended that, in the instant case, the sale in favour of Ashraf Ali Khan was prior even to the institution of present suit by the pre‑emptor and hence it is not hit either by the principle of lis pendens or by that of "subsequent vendee" in a pre‑emotion suit. Before entering into legal discussion, it is better to have in mind certain factual aspects.

6. It is a matter of record that the sale under pre‑emotion had taken place on 19‑9‑2000 vide Mutation No.627. Before, that the pre‑emptor, could bring a suit on 5‑10‑2000, the vendee Abdul Subhan had already sold the property in favour of Ashraf Ali Khan on 29‑9‑2000 vide Mutation No.639. The stance about sale in favour of Ashraf Ali Khan had already been taken by Abdul Subhan the first vendee in his written statement dated 23‑1‑2001. The pre‑emptor filed an application for the impleadment of Ashraf Ali Khan on 23‑2‑2001 Whether the situation in hand attracts the principle of list pendens or the principle of the "subsequent vendee" in a pre‑emotion suit, will be determined in the light of the case‑law cited on either side.

7. It may be stated at the very outset that the instant one is not a case of a vendee improving his status after the institution of pre‑emption suit but one where the vendee has altogether transferred the entire land in favour of another person. We think that the reference of section 22 of N.‑W.F.P. Pre‑emotion Act, 1987 in the impugned order concerning the improvement in the status of vendee, is misconceived. Instant one is a case of further sale by the vendee prior to the institution of a pre‑emotion suit against him and not a case where a pre‑emptee makes a "subsequent sale" during pendency of a pre‑emotion suit.

8. Learned counsel for the petitioner placed reliance on Muhammad Khan v. Sadiq PLD 1968 Lah. 929 in support of his argument that the subsequent sale in the instant case in favour of Ashraf Ali Khan is hit by the principle of lis pendens and the pre‑emptor was not bound to pursue such‑sale. In the case cited above. a sale through registered deed, dated 11-8‑1956 was pre‑emoted by Muhammad Sadiq etc. on 1‑10‑1956. The vendees appeared and filed written statement whereupon issues were framed on 21‑2‑1957. The case was fixed for evidence on 9‑4‑1957 but before that, on 25‑2‑1957 the vendees sold the property through registered deed in favour of the pre‑emptors. This second transaction pre‑emoted by a third person was held by the High Court to be a new transaction and suit for pre‑emotion filed by a different pre‑emptor was considered genuine. The facts are altogether different with peculiar thing to be noted that the sale by vendees had taken place after the institution and during the pendency of pre‑emotion suit.

9. The learned counsel further relied on Pyare Mohan v. AIR 1980. Rajasthan

116. Here the sale dated 2‑1‑1957 was by Rameshwar but ,a subsequent sale on 30‑12‑1957 was done vendee in favour of Abdul Ghani, who, on 30‑12‑1959, further property in favour of Pyare Mohan. The transactions were held hit by the principle of lis pendens, having decidedly taken place during the pendency of the suit.‑

10. Muhammad Khan v. Zir Mir Khan 1981 CLC 129 where, after, pre‑emotion suit the disputed property was returned to the original vendor. It was held and rightly so, that a right of pre‑emptor cannot be defeated by means of resale to the original vendor. The facts are distinguishable but one thing is again apparent that such resale had occurred during the pendency of the suit. Almost similar were the circumstances in Falak Sher v. Muhammad Rashid PLD 1982 Lah.426.

11. The principle of lis pendens with, reference to subsequent sale in pre‑emotion cases ha,, already been highlighted by this Court in Mian Tahir Shah v. Additional District .fudge, Swabi 1998 SCMR 858 where it was ruled that first vendee being party to proceedings, was not possessed of any right to alienate the property in question as per mandate of section 52 of the Transfer of Property Act. It was a case of "subsequent sale" and "subsequent vendee". The situation had decidedly arisen during the pendency of pre‑emotion suit.

12. From the case‑law on the subject in general and from that cited at the Bar in particular one feels, no difficulty in arriving at the conclusion that, once a pre‑emotion suit stands instituted, a vendee is prohibited from entering into sale or resale of the' disputed property. It is obvious because the lis is pending adjudication. Even otherwise, it is a' matter of common sense that the provisions of section 52 of the Transfer of Property Act would get attracted only and only when the lis is pending. Contrary to that, in the instant case, the pre‑emptor had not then instituted the pre‑emotion suit on 5‑10‑2000 when the vendee Abdul Subhan had already sold, the property to Ashraf Ali Khan on 29‑9‑2000 vide Mutation No.639. How by any stretch of imagination or interpretation this further sale can be brought within the four corners of the principle of lis pendens. The learned High Court has, therefore, rightly held that it was a new transaction altogether and the pre‑emptor if at all interested in pre‑empting the sale, should have filed a suit against the latest sale and not against the previous one. If the principle of lis pendens is wrongly applied to the sales taking place prior to the A institution of suit then every purchaser shall be made bound to wait for a pre‑emption suit and refrain from exercising his proprietary rights over the property purchased. The right of pre‑emption, by such interpretation cannot be so over‑stretched and so blown out of proportions.

13. Consequently, the petition is rejected and leave to appeal refused. S.A.K./A‑52/S Leave refused.