P L D 1984 Supreme Court 334 (PLP)

MUHAMMAD APZAL ZULLAH, J.--This appeal through special leave of the Court, is directed against the jugment dated 1 ~-5-1 474 of the Peshawar High Court ; whereby a Civil Revision arising out of a pre-emption suit, was allowed. The relevant facts and the points noted for the grant of leave to appeal are as follows :- "By registered sale-deed dated 16-3-1971 Haji Azizur Rehman respondent No. 2, purchased land measuring 3 Kanals 15 Marlas in Khasra No. ?813 in Chak Rajjar, District Peshawar. On 13-3-1972 the appellant filed a suit for pre-emption of the area sold on the basis of contiguity. The suit was registered as No. 61/1. Four days later that is to say on 16-3-1972 Mst. Sakina, the vendee's wife brought a rival suit of pre-emption of the land sold on the ground of contiguity. But her plaint was rejected on 29-3-1972 owing to her failure to deposit the requisite pre-emption money as required under section 23 of the N: W. F. P. Pre-emption Act, 1950. "By another sale deed dated 20-12-1971 Haji Azizur Rehman, respondent No. 2 purchased further area of 8 Kanals 6 Marlas (hereinafter called the suit land) out of Khasra No 2813. The appellant brought another suit on 13-3-1972 to pre-empt this sale as well. This suit was registered as 60(1). "Mst. Sakina, respondent No. 1 in assertion of her superior right of pre-emption on the basis of contiguity purchased both the areas from her husband boy means of registered sale-deed dated 20-3-

972. Accordingly, the appellant impleaded her as defendant in two preemption suits filed by him, He characterised the sale of both the areas by respondent No. 2 in favour of his wife as collusive and asserted superior right of pre-emption as against her as also her husband the first vendee. "The trial Court found that the sale by respondent No. 2, in favour of his wife was genuine and there was equality of right of pre-emption between the petitioner and the vendoe's wife, both having claimed superior right of pre-emption as against the vendee on the basis of contiguity. On these findings the appellant's suit regarding suit land (No. 60/1) was dismissed ; but the other Suit No. 61/1 was decreed on 15-5-1972 (as tier purchase in that behalf was after the period of limitation - 1st sale was on 16-3-1971 while her purchase was on 20-3-1972). "On appeal by the appellant, the judgment of the trial Court regarding the Suit land (No. 60/1) was reversed by the learned Additional District Judge who took the view that the suit of respondent No. 1 for pre-emption of first sale dated 16-3-1971 'in favour of her husband having been dismissed, and the sale in her favour by the husband in that suit, having been made after the expiry of limitation for the pre-emption of the first sale, the appellant had acquired an indefeasible right to pre-empt 3 Kanals 15 Marlas which made him a co-sharer in Khasra No. 2813, inhering to him a superior right to pre-empt the land in dispute in- the second salo.as against respondent No. 1 (the wife) ; who was seeking to protect the sale merely on the basis of contiguity. "Aggrieved by the above decision of the first Appellate Court, the wife (respondent No. 1) filed a revision in the High Court but only with regard to the Suit (No 60/1) relating to the suit land (i: e., 8 Kanals 6 Marlas). The learned Judge in the High Court accepted her revision on the ground that it was essential under section 4 of the Azt for the enforcement of right of pre-emption that the pre-emptor has superior right of pre-emption not only on the date of sale but that he also retains that superiority until the passing of the decree Since respondent No. 1 during the pendency of the Appellant's suit filed on 13-2-1972 for the pre-emption of the suit land had by reason of sale dated 20-3-1072 in her favour within the period of li nitation, in assertion of her right of pre-emption, purchased the land in dispute from her husband, she had thereby acquired equality of right of pre-emption with the appellant which would defeat the suit (No. 60/ 1) for the pre-emption of the land in dispute. ?"Learned counsel for the appellant placed reliance on section 17 of the? Act and argued that since the sale of the suit, land to respondent No. 1? was made subsequent to the institution of Suit No. 60/1, in respect of? the land in dispute by the appellant and therefore the respondent No. 1? cannot on the terms of section 17 defeat the appellant's suit for? pre-emption of the suit. According to the learned counsel sale in? favour of respondent No. 1 to be effective for the relevant purpose . ought to have been prior to the institution of Suit No. 60/1" Learned counsel has reiterated the plea which prevailed with the learned Appellate Court. Two cases cited on the subject are Ghulam Huhammad v. Bagga (P

1. D 1962 (W. P.) Lab. 693) and Saadudah Khan v. Mohabat (P L D 1975 Posh. 218). Sections 4, 16 and 17 of the N: W. F. P. Pre-emption Act, 1950 (N.-W. F. P. Act XIV of 1950) are relevant for consideration. They read as follows Section

4. Right of pre-emption.-The right of pre-emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosure of the right to redeem such property. Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in fact a sale". Section

16. Effect of loss of right by pre-emptor prior to decree.-No decree for pre-emption shall be passed in favour of any person unless he has a subsisting right of pre-emption at the time of the decree, but where a decree for pre-emption has been passed in favour of plaintiff, whether by a Court of first instance or of appeal, the right of such plaintiff' shall not be affected by any transfer or loss of his interest occurring after the date of such decree. Explanation.-For the purposes of this section, no pre-emptor-plaintiff shall be deemed to have lost a subsisting right of pre-emption by reason of the fact that the vendee-defendant has after the expiry of the period of limitation provided for a suit for pre-emption, transferred the property in dispute to a person having a right of pre-emption equal or superior to that of the plaintiff. Section

17. Sale of Property to pre-emptor or acquisition of right by original purchaser prior to suits.-(1) No suit for pre-emption shall lie where the purchaser has, prior to the institution of such suit, transferred the property in dispute to a person, having a right of pre-eruption equal or superior to that of the plaintiff. (2) Any improvement, otherwise than through inheritance or succession, made in the status of a vendee-defendant after the institution of a suit for pre-emption shall not affect the right of the pre-emptor plaintiff in such suit. Learned counsel for the appellant during the hearing of this appeal presented an argument with the permission of the Court, which is somewhat l~ different from the point raised at the time of the grant of leave to appea Il It is to the effect that regarding first sale Mst. Sakina's right to defend the subsequent sale in her favour on the basis of equal right of pre-emption on ground of contiguity, will not be available to her because the original vendee made the sale in her favour beyond the period of limitation for filing the suit in respect of the said first sale. Accordingly on the date of the decree i. e. 15-5-1972 in favour of the appellant as a successful pre-emptor against Mst. Sakina regarding first sale he (by virtue of this decree) became a co-sharer in the land which was the subject-matter of the second sale which also, she had purchased from the original vendee. And thus on account of having become co-sharer by virtue of the said decree the plaintiff would defeat Mst. Sakina's plea on the basis of contiguity only as co-ownership furnishes better right of pre-emption than contiguity. On this reasoning it was urged that the appellant would succeed in the second suit as well. This argument prima facie seemed defective because the pre-emptor would as shown in the argument acquire right of pre-emption at the time of the decree passed in his favour on 1 5-5-1972 in respect of the first sale and would not, therefore, have a right of pre-emption at the time of the second sale of suit land which took place on 20th/27th of December, 1971 regarding which an effort is being made through this appeal to establish right of pre-emption. But the learned counsel, relying on Malik Hussain and others v. Lala Ram Chand and others (P L D 1970 S C 299) contended that the right of pre-emption being ogle of substitution the appellant would notionally in law, be deemed to have stepped into the shoes of the vendee in regard to the first sale which took place on 16-3-1 ,71 ; therefore he will be deemed, by virtue of the subsequent decree regarding that sale, to be the owner (co-sbarer since 16-3-1971 and the said date being prior to the date of second sale (of suit land) i. e. 20-12-1971, the condition regarding right of pre-emption at the time of sale would also be deemed to have been', satisfied. With respect, it has to be pointed out that although the principle of the learned counsel is one of the basis of the judgment of this Court in the case of Malik Hussain, it is a weak argument that the substitution in cases like the present one, would in law be deemed to have taken place on the date of the original sale and not on the date of the completion of the so-called sale in favour of the pre-emptor as a result of the execution (in every respect) of the pre-emption decree, as visualised by Order XXX, rule 14, C. P. C. It is only then that a pre-emptor would become owner and would stand in the shoes of the original vendee and not from the original sale as contended before us. Further support can be found for the foregoing view from the language and combined effect of sections 4, 16 and 17 of the N: W. F. P. Pre emption' Act, 1950. Right of pre-emption as defined in section 4 means a right to acquire property specified therein, in preference to certain other persons, only, if "it arises" in respect of that property, when it is sold. At the time of the sale a right to pre-empt the same must exist contemporaneously. The expression "it arises" refers to a right which exists and subsists so as to arise' at the time of the sale. This condition is basic to the exercise of that right. Thus if the right of pre-emption arises or matures subsequent to the sale, it' would not be treated as a right of pre-emption under section

4. This provision does not admit of any deeming process in anti-dating the right of pre-emption by implication through any principle including that of substitution. Thus the definition of right of pre-emption having excluded a possibility of the expansion of the definition by implication, it would not be possible for the Court to introduce the same through an artificial principle. Section 16 provides that no decree for pre-emption shall be passed in favour of any person unless he has "a subsisting" right of pre-emptor at the time of decree. It means that at the time of the decree a right to pre-empt must subsist. In other words, this provision pre-supposes that a right of pre-emption did ; xist at an earlier time and the law requires that the said right should continue upto the date of the decree. That is why here the word "subsisting" has been used in contradiction to "existing". The so-called right which the learned counsel for the appellant has made the basis for pre-emption regarding second sale would incur for the benefit of the preemptor from the date of the decree regarding first sale which was passed on 15-5-1972. That decree was passed in that case on the basis of ground of contiguity regarding a sale which took place on 16-3-1971. In that behalf the pre-emptor's right did exist on the date of the sale i. e. 16-3-1971 and it subsisted till the date of the decree i. e. 15-5-1972. But it is not correct that a right would accrue to the pre-emptor on the date of the said decree on 15-5-1972 regarding an other sale which took place on 20/27-12-1971 only the ground that he had become by virtue of that decree, a co-sharer, in suit land of second sale. It would on account of the afore-discussed defect-lack of right of pre-emption as co-sharer at the time of the sale, would stand negated by the language of sections 4 and

16. The two cases from Lahore and Peshawar cited at the Bar and already noticed namely that of Ghulam Muhammad and Saadullah Khan to the extent they reflect the above interpretation of the relevant provisions proceeded on correct principles and are thus to that extent approved. Same is the position with regard to Abdul Khaliq v. Abdul Ghana (P L D 1969 Lab. 249). Another recent case of this Court although involving different facts proceeds on the same principle. It is Muhammad Khan and other v. Muzafj'ar (P L D 1983 S C 181) to the effect that a pre-emptor in order to succeed should have superior right amongst others at the time of the sale and that it is not possible to visualise the acquisition of such a right contemporaneously with the process of sale which is made the subject-matter of such right. When extended to its logical end, any acquisition of the superior right after the same which is not actually `subsisting' at the time of passing of the decree would also be not permissible. In addition to the afore-discussed aspects of the case it needs to be remarked that the explanation to section 16 makes a negative provision to the effect that no suit for pre-emption shall fail where the defendant vendee transfers the property after the period of limitation to a person having a right of pre-emption equal or superior to that of the plaintiff. In other words if it is within the period of limitation, then the suit shall fail. Admittedly Mst. Sakina having been transferred the land which was the subject-matter of the second sale, within the period of limitation, she could resist appellant's claim of pre-emption on the basis of this statutory bar. And this bar does not admit of any exception based on any principle including that of substitution. The exception mentioned in subsection (2) of section 17 it has been t admitted before us is not attracted to the case regarding the second sale to 'which this appeal relates, because it refers to the improvement made in the status of the original vendee-defendant and not to Mst. Sakina, the transferee from him. The point on which leave was granted, as already indicated, has not bee pressed. But we deem it necessary to deal with the same so as to avoid an confusion. Subsection (1) of section 17 provides that no suit for pre-emption shall lie if prior to the institution thereof the vendee has transferred tile property to a person having a right of pre-emption equal or superior to that of the plaintiff. It places a bar for the competency of the suit if filed after such transfer. But it does not provide any period till when the property can be transferred in the manner provided therein. For that the limitation is discoverbble from two sources. One as already noticed from section 16, with particular reference to the explanation thereof. And two : the principle that a person who can enforce his right of pre-emption through Court will not b prevented from doing so out of Court in recognition of his right ; provided he satisfies the condition of Limitation. In other words it must be done within the normal period of limitation so as to avoid the objection of lis pendis.~ Otherwise if the second transfer takes place after the period of limitation the, second vendee will have right and interest only of representative-in-interest of, the 1st vendee. But if the transfer is within limitation he will have the right' to defend the sale independently of the 1st vendee's right. Section 17(1) does` not detract even an iota, from the foregoing principle which stands established' for more than half a Century. This provision rather places a restriction on, the right of the intending plaintiff to file a suit when, in recognition of this principle, another person with better or equal right has obtained the transfer within the period of limitation as intended also by explanation to section

16. For discussion on the afore-noted principle amongst others the following are some of the important cases Muhammad Mujtaba v. Ghulam Ali and others 1980 S C M R 7 ; Mst. Fateh Bib! v. Ahmad Khan and others P L D 1971 Lab. 171 ; Muhammad Shuja and others v. Sher Afzal Khan and others P L D 1970 Pesh. 136 ; Mt. Sant Kaur v. Teja Singh and others A 1 R 1946 Lab. 142 and Mool Chand and others v. Ganga Jal and others A I R 1930 Lab. 356. (The last two judgments are by Full Benches). The argument advanced by the learned counsel on the basis of the right of substitution has already been discussed. It has failed. In the light of the foregoing discussion on the combined reading of section 4, section 16 and section 17 of the N.-W. F. P. Pre-emption Act, 1950 as also the principles involved, this appeal has no force and is accordingly dismissed. There shall be no order as to costs. Appeal dismissed.