1991 PLP 1443 (SCMR)

SHAFIUR RAHMAN, J ‑‑‑Leave to appeal was granted to the pre- emptors in two separate suits disposed of by a consolidated judgment of the High Court dated 21‑6‑1988, to examine whether the High Court had correctly interpreted the decision of this Court in Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287, to deny the decree in respect of the entire land in spite of holding the pre‑emptors entitled to it.

2. Majid was the owner of agricultural land in village Shah Muhammad Wali, Tehsil Talagang, District Chakwal. On the 10th of March, 1967, he got attested a mutation of sale of land measuring 30 kanals 9 marlas in favour of Ghulam Haider for Rs.13,

500. On 18th of March, 1967, he got another mutation attested in respect of 135 kanals 13 marlas of land in favour of the same Ghulam Haider, for Rs.60,

000. Before the institution of any pre‑emption suit i.e., on 19‑2‑1968, Ghulam Haider, the vendee sold 1/3rd share in both the lands just mentioned, in favour of Taj Muhammad, Muhammad Sadiq and Fateh Khan (respondents Nos.2 to 4). Muhammad Ismail and Ghulam Sarwar instituted the pre‑emption suits on 18th of March, 1967. The trial Court, after contest decreed the suits as against Ghulam Haider to the extent of 2/3 left over share but did not grant them relief in respect of 1/3rd share which was admittedly sold in both the properties prior to the institution of the suit in favour of subsequent vendees who had a superior right as against the first vendee.

3. Two appeals were filed one in respect of each and these were dismissed by the first Appellate Court. When the matter was taken to the High Court in Second Appeals, the High Court came to the conclusion that the view taken by the two Courts below on the superiority of the right of the subsequent vendees and the protection of the share purchased by them was erroneous and the plaintiffs/pre‑emptors in both the suits were entitled to the entire property. Nevertheless, the High Court did not grant the relief which it thought was due to the pre‑emptors because of our judgment in Sardar Ali's case P L D 1988 S C 287 holding that as the original decree in favour of the pre‑emptor was limited to 1/3rd share, that judgment did not warrant any increase over it though the decrease could take place.

4. In view of the decision of the High Court, the learned counsel for the appellants has contended that the decision in Sardar Ali's case had been misapplied to deny them the relief. The learned counsel for the respondents, on the other hand, contended, as held by the first two Courts, that the right of the pre‑emptors could not exceed the 2/3rd share that was granted against Ghulam Haidar who had no equal or superior right of pre‑emption as against the pre emptors.

5. So far as the constraints of decision of Sardar Ali's case are concerned, two features have to be noted. Firstly, the rights held protected under that decision were those in which the right to pre‑empt the sale was recognised. It was not dependent oil the nature and extent of the relief granted. If the rights stood recognised, then in the matter of relief increase and decrease in the area or share could take place without violating the law laid down by this Court in Sardar Ali's case. Secondly, what was recognised in Sardar Ali's case was a right to pursue his remedies after a decree has been obtained in recognition of his right. There may take place remands and reversals of the decree but the pursuit of the pre emptor, once a decree has been passed before the relevant date, can continue undeterred and uninterrupted. On this view of the matter, the decision in Sardar Ali's case was no bar to the grant of relief which the High Court thought the pre emptors eminently, deserved.

6. As regards the entitlement of the pre‑emptors, the resale in favour of respondents Nos.2 to 4, the subsequent vandees, can be considered to be in recognition of their superior right of pre‑emption so as to defeat the claim of the pre‑emptors only if it had been coextensive with the sight itself. If their right extended to the whole of the property by parting with only a portion of it, the first vendee cannot claim that he had recognised the superior right of pre‑emption to that extent and such truncated resale would be of no avail to either. The reasons for not accepting such re-sales are two‑fold. Firstly, it amounts to dividing an, otherwise, indivisible sale; and Secondly it amounts, so far as the subsequent vendees are concerned, to associating themselves in the purchase, the strangers. If the subsequent vendee, having a superior right does not permit, the first vendee cannot retain any portion of the land purchased by him, having recognised the superiority of the right of the subsequent vendee over the whole. Both these, violations or purchase, are impermissible under the pre‑emption law. The pre‑emptor substitutes the purchaser. The substitution, therefore, has to be of the whole, which can be substituted and not a choice exercised with regard to a part either with regard to the price or with regard to the land.

7. The learned counsel for the respondents heavily relied on the following observations made by the learned Judge of the Lahore High Court in Khurshid Alam and 2 others v. Muhammad Shat Nawaz and 12 others (1985 C L C 1286 Lahore);‑‑

"The Pre‑emption Act merely recognises the right of substitution. The law also recognises the right of a vendee to surrender the land to another person in recognition of right of pre‑emption superior to his own. Thus, right available under the law of contract is not circumscribed in the case of voluntary contracts though for exercise and enforcement of right of pre‑emption through a Court of law certain defined circumstances and classes of persons have been provided for. These limitations or qualifications are as such applicable to the exercise of right of pre emption through a Court of law and by no stretch of imagination these can be extended to voluntary contracts. It was, therefore, not compulsory for the petitioners to purchase the entire land from Ashraf and Munawar respondents, the original vendees."

8. It is true that these observations do help the learned counsel for the respondent but the Courts only enforce the rights anti there is no enlargement or depreciation of the right by coming to the Court. The rights must be possessed outside the Court before they are enforced through the Court. To say, the limitation and qualifications apply for Courts and not attach to the right itself in the case of pre‑emption cases would not be correct.

9. We accept the appeal, set aside the judgment of the High Court and decree the claim of the pre‑emptors to the whole of the land purchased by Ghulam Haider (respondent No.l) on the, price paid by him, as mentioned in paragraph 2 of the judgment. The balance of the price shall be deposited by the pre‑emptors within two months from the date of the announcement of the judgment, failing which the suits with regard to the remainder shall stand dismissed. A.A./M‑1496/S Appeal accepted.