2004 PLP 466 (YLR)

CHAUDHARY MUHAMMAD TAJ, J.

This petition Was filed to review the judgment and decree passed by this Court on 30-1-2002.

2. The facts precisely stated are that the suit-land was purchased by Muhammad Faraz Khan, respondent No.2 (since dead) from respondent No-3. Najib Khan, respondent No-1, filed 4 pre-emption suit. After filing of the 'suit respondent No.2 secured a gift-deed and thus improved his status equal to the pre-emptor. During the pendency of the suit the petitioner purchased the suit-land through a registered sale-deed and acquired the possession of the same. An application on behalf of the petitioner to implead him as party in the proceedings was moved before the trial Court which was rejected. The suit was decreed in favour of the pre-emptor/ respondent No.1 The finding was upheld in the Court of District Judge and subsequently by the High Court and this Court.

3. Mr. Abdul Majeed Mallick assisted by Raja Muhammad Siddique Khan, the learned counsel for the petitioner, raised following points in support of the review petition:-- (i) That the suit of the pre-emptor respondent No.1 was liable to be dismissed on account of equal status of the vendee- respondent No. 2; (ii) that the petitioner claimed the same status as that of respondent No.2, the vendee of the suit-land; (iii) that it was imperative that the petitioner should have been arrayed as party in the proceedings and an issue to this effect should have been framed, so that the application of the petitioner to implead him as party could be lawfully decided; and (iv) that the petitioner raised a specific point but no finding was given in respect of petitioner's improvement of the status, therefore, there was an error of law. The learned counsel referred to the following authorities in support of his contentions:-- (1) Muhammad Lal v. Mohko and 2 others PLD 1979 SC (AJ&K) 15. (2) Muhammad Malik v. Ch. Yaqoob Javed Batalvi arid another 2002 SCR 47. (3) Amanat Ali v. Mst. Sardar Bibi and 2 others 2003 MLD 299.

4. Ch. Munsif Dad, the learned counsel representing the respondent, argued in the following manner:-- (i) That. it is statutory law that vendee cannot improve his status during the pendency of the suit; (ii) that transfer of the suit-land in favour of subsequent vendee has no significance in the eye of law after the prescribed limitation for filing the pre-emption suit, therefore, rule of lis pendens applies as such the subsequent vendee, the petitioner herein, was not a necessary party and therefore his application was correctly dismissed; (iii) that the trial Court decided the matter against the first vendee, Muhammad Faraz Khan, who did not challenge the findings before the First Appellate Court, the High Court or before this Court as such findings attained finality, therefore, the present petitioner who was a stranger in the proceedings had no lawful right to file appeal before the District Judge, High Court and this Court and also to file review petition; and (iv) that there are no valid grounds available in the review petition as such ,the same is liable to be dismissed. The learned counsel referred to the following authorities in support of his assertions:-- (1) Abdul Karim v. Kala Khan and another PLD 1987 Azad J&K 139. (2) Muhammad Afzal Khan and another v. Muhammad Latif and another 1995 CLC 1951.

3. Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1997 SC 865.

5. We have heard the learned counsel for the parties and also gone through the record. A pre-emption suit was filed on behalf of respondent No.1 against respondent No.2 Muhammad Faraz Khan. The first vendee transferred the land after seven years of the filing of the .suit. The transaction took place after the prescribes limitation for filing the pre-emption suit, therefore, the rule of lis pendens is attracted. The subsequent vendee was not necessary party and thus could not be arrayed as such on his application which was correctly dismissed by the trial Court. The appeals filed on his behalf before the District Judge, the High Court and this Court were correctly dismissed as he has no locus standi to file the appeal.

6. It may be mentioned that the trial Court passed a decree in favour of pre emptor/.respondent No. 1, against Muhammad Faraz Khan, vendee-respondent No.2, who did not file any appeal before the District Judge, High Court or this Court, therefore, findings attained finality against him. The petitioner who has been held not a necessary party could not be held to have stepped into the shoes of the said vendee, therefore, his appeal did not merit any consideration as such was disallowed by all the Courts including this Court. The claim of the petitioner that the first vendee had improved his status by securing a gift deed did not impress the trial Court and thus did not decide the matter on. this ground in favour of first vendee. The aforesaid ground was not taken through an appeal by the first vendee, therefore, the point. stood concluded finally and could not be considered in the appeal filed on behalf of a person not relevant in the proceedings or otherwise aggrieved in law. Therefore, this point does not carry any weight for the purpose of review of the judgment and decree passed by this Court. The authorities referred to by the learned counsel for the petitioner with their distinct facts are not applicable to the case in hand as such are not discussed.

7. In view of the above, the review petition is devoid of any force which is dismissed. Review petition dismissed S.A.K./390/SC(AJ&K)