2007 PLP 844 (MLD)

MUHAMMAD RAZA KHAN, J.

This revision is directed against the judgment and decree, dated 6-5-2005 of the learned Addl: District Judge, Haripur whereby he dismissed the appeal of the present petitioner against the judgment and decree of the learned Civil Judge Haripur, dated 22-9-2004.

2. A suit for pre-emption was instituted by Akbar (respondent) for enforcing his right of pre-emption in respect of the land, described in the headnote of plaint which was sold through registered Deed No.251 'attested on 27-3-1994. The suit was contested and after recoding evidence the learned C.J.-V Haripur vide judgment and decree, dated 22-9-2004, granted a decree for possession through pre-emption in favour of the plaintiff in lieu of Rs.80,000 being sale consideration of the suit-land. This judgment was challenged in appeal but without success, hence this revision petition.

3. During hearing of this revision petition the learned counsel for the parties restricted their arguments with regard to issue of improvement in the status of vendee-defendant before the institution of the suit: Qazi Muhammad Ghazanfar Advocate for the petitioner (who was vendee-defendant in the suit for pre-emption and wrongly recorded as plaintiff in the heading of the revision petition) argued that the impugned sale took place on 27-3-1994 and the suit was instituted on 18-7-1994 whereas in the interregnam the vendee had purchased more land measuring 3 kanals, 3 marlas in the suit khasra number vide mutation No.952 attested on 20-4-1994, therefore, he had acquired equal rights of co-sharership with the plaintiff/pre-emptor, so the decree for the entire land in favour of the plaintiff was in violation of the section 20 A of the N.-W.F.P. Pre-emption Act.

4. Malik Abdul Jalil Advocate representing the respondent/pre emptor (who was originally the plaintiff in the suit and wrongly stated as defendant in the heading of the petition) argued that the vendee has to establish superior or equal rights of pre-emption at all the three stages i.e. date of sale, date of institution of suit and date of decree. He pointed out that under the relevant law there is no scope of improvement in status except through inheritance as per section 22 of the said Act. Thus he vehemently resisted the contention of the petitioner for retaining the title of half of the property on the said ground.

5. For the determination of this simple controversy it shall be expedient to have the provision of law reproduced for ready reference. Section 22 of the N.-W,F.P. Pre-emption Act 1987 provides, "improvement made in the status of vendee-defendant after institution of the suit for pre-emption, otherwise than through inheritance, shall not affect the right of pre-emptor plaintiff".

6. The plain reading of section 22 shows that the improvement in the status of vendee after the institution of the suit shall be of no benefit which impliedly means that prior to the institution of the suit he can improve his status. This section is identical to section 21-A of the Punjab Pre-emption Act, 1913 which provided: "any improvement, otherwise than through inheritance or succession, made in the status of vendee-defendant after the institution of suit for pre-emption shall not affect the right of the pre-emptor-plaintiff in such suit."

7. Section 17 of the N.-W.F.P. Pre-emption Act, 1950 is also identical to section 22 of the Punjab Pre-emption Act, 1913, referred to hereinabove.

8. This matter was settled in a judgment of this Court reported in PLD 1960 Peshawar-I, holding therein-that:-- "Originally there was no specific provision in Punjab Pre-emption Act on this subject to deal with the improvement in the status of vendee-defendant made after the institution of suit for pre-emption. As such there was difference of opinion as to whether a vendee can improve his position against the pre-emptor during the pendency of the suit. In 90 PR 1909 it was held that he could not do so but in the later ruling i.e. ILR 1942 Lahore-155 it was held that he could. This dispute was set on rest by the amendment of the Act whereby section 21-A was inserted."

9. Since the wording of section 22 of Act of 1987 and section 21-A of Punjab Pre-emption Act, 1913 as well as section 17-A of the N.-W.F.P. Pre-emption Act, 1950 are similar, therefore, the relevant law developed under the said provisions shall be applicable. The principle laid down in this regard is that after the institution of suit the vendee shall not be entitled to improve his status as against the pre- c emptor except through inheritance. This, by implication, means that vendee defendant can improve his status after the sale but prior to the institution of suit of pre-emption against the sale.

10. The controversy has originated from the general concept that pre-emptor shall have to establish his superior right of pre-emption, as against vendee, at three stages i.e. at the stage of sale, the institution of suit and date of decree. If the pre-emptor is not so vested with the superior right at all three stages, his suit for pre-emption is not maintainable. Conversely, it is argued that if the defendant was not having equal status at the impugned sale he can also be deemed to be ineligible to improve his status after the said sale.

11. In the earlier law of 1913 and 1950 the plaintiff/pre-emptor had to establish that he was having superior right as against vendee-defendant and the vendee having equal rights with the pre-emptor shall defeat the pre-emption suit. However, under the Act of 1987 the position is different. Now if the vendee and pre-emptor are placed on equal status they have to share the property equally under section 20 of the Act. Thus the improvement of the status by the vendee, whereby he acquires equal status with the pre-emptor, shall entitle him to half of the property. However, this facility of improvement of status shall not be available after the date of institution of suit against him, except through inheritance. There is logic behind this exception because the person from whom the vendee inherits, was already having equal status with the pre-emptor on date of sale, or at least on date of institution of suit.

12. Under the repealed law since the pre-emptor had to establish his superior rights as against vendee, therefore, in PLD 1980 SC AJK 18 it was held that "on the basis of the said provision a vendee equaling himself with the pre-emptor through inheritance during pendency of suit destroys his right". However, there is no doubt with regard to the fact that prior to the institution of suit the vendee can certainly improve his title whereby, under old law he could defeat the pre-emption suit and, under the present one he shall be entitled to share the property with the pre-emptor.

13. In the original Act of 1987 there was no possibility of improvement in the status of vendee after institution of suit even by inheritance but vide N.-W.F.P. amendment Act 10 of 1992, the phrase "otherwise than through inheritance" was inserted and thereby the vendee defendant has become entitled to improve his status by any means prior to the institution of the suit. However after the institution of suit he can improve his status only through inheritance. The effect of improvement of status by the vendee shall be that if he acquires equal status with that of the pre-emptor he shall be entitled to share the suit property but if he can acquire a status better than pre-emptor the suit could be defeated. So a pre-emptor claiming his right on the basis of "Shafi Khalit" shall be defeated if the vendee becomes "Shafi Sharik" and similarly if the pre-emptor claims to be "Shafi Jar" and the vendee through improvement of status, prior to the institution of the suit or through inheritance after the institution of the suit, becoming a participator to rights attached to the immovable property or becomes co-owner in the corpus of the undivided immovable property shall defeat the pre-emptor claiming to be "Shafi Jar". 15.(sic) In the present case since the plaintiff pre-emptor was admittedly co-owner in the corpus of joint property on the date of sale, the institution of suit and date of its decision whereas the vendee defendant (now petitioner) has become co-owner in the same property on 20-4-1994 i.e. prior to the institution of suit and therefore, the rights of the parties are equal in status and they shall be entitled to equally share in the property.

16. With regard to the market value there is no dispute and it is conceded that the amount stated in the registered deed being Rs.80,000 shall be true sale consideration of the suit property.

17. Thus the revision petition is partially allowed, the impugned judgment and decree is modified and the petitioner/vendee shall be entitled to retain half of the property and to this extent the decree is set aside whereas the decree to the extent of the remaining half in favour of the plaintiff/pre-emptor is maintained on payment of Rs.40,000 being the cost of the half of the suit property. If the plaintiff had deposited the sum of Rs.80,000 in compliance with the decree of learned trial Court he shall be entitled to get the refund of Rs.40,

000. No order as to cost. H.B.T./49/P Order accordingly.