2002 PLP 1334 (YLR)

"In other words, learned counsel contended that it was a heritable right. The aforesaid view expressed in the case of Faqir Ali Shah (supra), was not followed by erstwhile High Court, of Lahore in case of Faiz Muhammad v. Chaudhary Fajar Ali Khan and another (AIR 1944 Lahore 172). Even Allahabad High Court in the case of Chhaju and others v. Jai Dayal and others (AIR 1947 Allahabad 297) expressed the contrary view. In another case, namely, Abdul Khaliq v. Abdul Ghani (PLD 1969 Lahore 219), it was held that the view expressed in the case of Allah Dad and another v. Hukam Dad and others (PLD 1960 (W.P.) Lahore 900) is not applicable. This controversy stands settled by judgments of the Supreme Court in the following cases:‑‑ (1) Akram v. Mst. Sakina Begum and others (PLD 1984 Supreme Court 334); Aziz ur Rehman and others v. Muhammad Nawaz (PLD 1988 Supreme Court 384) and Muhammad Ayub v. Ghulam Hussain (1989 SCMR 1078). In this view of the matter, no exception can be taken to the view followed by the learned, District Judge. The revision petition, thus fails and is hereby dismissed."

4. The Honourable Supreme Court of Pakistan endorsing the view expressed in the case of Azizur Rehman and others v. Muhammad Nazwaz (PLD 1988 Supreme Court 384) held in the case of Muhammad Younis v. Khushal (1989 SCMR 69) that right to pre‑empt the sale was not heritable.

5. It will be extremely beneficial to re produce the relevant observations of the Honourable Supreme Court of Pakistan from the judgment rendered in the case of Azizur Rehman and others v. Muhammad Nawaz (PLD 1988 Supreme Court 384, 386/387) wherein while examine sections 6, 11 and 12 of the N.‑W.F.P. Pre‑emption Act which were pari‑materia to the provisions of Punjab Pre‑emption Act, 1913 it was observed that:‑‑ Sections 11 and 12 of the N.‑W. F. P. Pre‑emption Act declare the right of pre‑emption to vest in certain persons at the time sale. Therefore, a pre‑emptor who had no right on the date of sale cannot improve his right after the sale by inheritance as the cause of action had already come into existence and the subsequent qualification by inheritance could not vest him with status after the accrual of cause of action. Section 6 of the N.‑W.F.P. Pre emption Act specifically lays down that the right of pre‑emption shall exist subject to the provisions and limitations contained in the Act. Therefore, it is not possible to examine the questions in the light of Mohomedan Law beyond the text of the Act itself. There is, however, a reported case Muhammad Ismail v. Abdul Rashid (AIR 1956 Allahabad 1), in which the question was also examined in the context of Mahomendan Law (Hanafi School), and it was held that the right of pre emption does not survive to the heirs if the pre‑emptor dies before obtaining decree in his favour. In this connection, it will be interesting to note the following observations. "Although the right 'of pre‑emption runs with the land and is not initially personal, it assumes a personal aspect for the purposes of enforceability in a Court of law. From the moment of the sale in favour of the stranger till the date of the decree in favour of the pre emptor, the right can be enforced only by the person who was the owner of the pre‑emptive property on the date of the sale of the property sought to be pre‑empted. During this interval, the right is attached to the person or the owner of the pre‑emptive property and he alone can enforce it in a Court of law. The right continues to be personal to him so long as a decree is not passed in his favour. During this interval, the, right is neither transferable nor heritable. But as soon as a decree is passed in his favour the right ceases to be personal and becomes a pr6prietory right fit to be transferred as well as to be inherited. " "The learned counsel relied on Hassan Muhammad v. Muhammad Hussain (PLD 1977 Azad J&K 40), but I find nothing in support of the proposition that the right of pre emption is heritable. The Court has held that under the Hanafi Law it is not heritable while under the Shafei Law the right of pre‑emption is heritable and that' it is permissible to follow the Shafei Law on the point. As I have already said that the right is subject to the text of the Act, the matter cannot be adjudged on this basis. For the reasons given above, the pre emption suit must fail as the respondent lacked the necessary qualification on the date of sale. The appeal is allowed with costs and the order of the High Court is set aside with the result that the order of the appellate Court stands dismissing the suit. "

6. Upon final settlement of the controversy by the Honourable Supreme Court of Pakistan that plaintiffs lacking right to pre‑empt a sale at the time of sale transaction, cannot acquire such a right even upon devolution of land from their predecessor‑in‑interest who possessed such a right at the time of sale.

7. In view thereof, there is no material in this Constitutional petition which is accordingly dismissed with no order as to costs. Q.M.H./M.A.K./M‑1079/L Petition dismissed.