2000CLC1213 (PLP)

Suit land was sold by Mehram in favour of the appellants through a registered sale‑deed, dated 5‑10‑1971 for a sum of Rs.5,

000. One Ahman son of Murad filed a suit to pre‑empt the sale on the basis of being relation as collateral and also owner in the estate. He, however, died, thereafter, the respondent succeeded him and was impleaded as party. He submitted amended plaint on the same grounds. Number of issues were framed by the learned trial Court arising out of the pleadings of the parties. Both the parties produced evidence in support of their respective pleas. Issue No.7 which was as to whether the plaintiff had superior right of pre‑emption ‑qua the defendant/vendee, was answered by the learned trial Court as follows:‑‑ "By Exh.P.l; copy of pedgreetable no doubt Ahman, the original pre‑emptor, is established nearly related to the vendor as against defendant vendees and had superior right of pre‑emption on this account but Muhammad Ramzan present plaintiff is quite at par with the defendant‑vendees and having failed to establish his superior right of pre‑emption at the time of decree, cannot succeed on this ground. However, by Exh.P.2, he established owner in the estate whereas the defendants‑vendees as admitted by the defendant as D.W.2 are not owners in the estate and in this respect he has a superior right of pre‑emption qua defendants‑vendees. The issue is answered accordingly" The suit was accordingly decreed by him on 13‑3‑1975. The appellants challenged the said judgment in appeal which appeal was dismissed by a learned Additional District Judge, Gujranwala, vide judgment, dated 20‑2‑1979.

2. In support of this appeal, it is contended that the trial Court having found the vendee as also the respondent/pre‑emptor at par in so far as their relationship with the vendor was concerned the respondent had no superior right of pre‑emption and his suit should have been dismissed. It is contended that reliance upon the inferior qualification of being owner in the estate in decreeing the suit of the pre‑emptor was wholly misconceived and contrary to the law on the subject. He relies upon Ragha Ram and another v. Dewa Singh and others AIR 1926 Lah. 300 and Asmatullah son of Sarbiland Khan v. Muhammad Umar Khan son of Ghulam Qadir Khan and another AIR (30) 1943 Pesh. 75 in support of his contention. 3: The learned counsel for the respondent, however, supports the judgment of the two Courts below on the ground that there are concurrent findings as to the superiority of the right of the respondent/plaintiff, and thus, the suit was rightly decreed in his favour.

4. It is not disputed that both the pre‑emptor and the vendee were at par in so far as section 15(b), clause thirdly, Punjab Pre‑emption Act, 1913 is concerned which deals with the rights of the persons in order of succession. The only point is whether the respondent/plaintiff could bank upon clause (c) thirdly which deals with the owners of the estate, in order to succeed in the suit. In Raga Ram's case (supra), the question was when the pre‑emptor and the vendee have superior qualification but the vendee lacks inferior qualification could the suit of pre‑emption succeed. Referring to section 15, it was observed that:‑‑ "The section lays down the order in which pre‑emptors stand and once the place of a pre‑emptor has been determined it cannot be affected by the fact that he does or does not hold any further or additional qualification which in the absence of the first or main qualification could or would be taken into account." and it was held that no number of additional inferior qualifications can improve the status of the man claiming in virtue of belonging to a superior class. The appeal of the pre‑emptor was accordingly dismissed. In Asmatullah's case (supra), it was held that:‑‑ "If the plaintiff and the vendee are equally, entitled under a higher right then the possession of a lower right in addition by the plaintiff does not entitle him to a decree. This is clearly the intention of the Legislature. Section 15 of the Act provides that if no person has a right of pre‑emption under clause (a) or clause (b) then a person entitled under clause (c) can exercise it. In the present case it is clear that there.are persons entitled under clause (b) and clause (c) does not apply at all."

5. In order to succeed in a suit for pre‑emption the pre‑emptor has to i prove that he is vested with a superior right of purchase. The additional qualifications of inferior degree are not relevant. This being the legal position obtaining on the subject and applicable to the facts of the present case, both the Courts misdirected themselves in granting a decree for pre emption in favour of the respondent on his plea of being an owner in the State which falls in clause (c) of the section i.e. inferior and lower in priority determined by the law. In view of the above, the judgments though concurrent by the two Courts below, cannot be sustained. This appeal is accordingly allowed setting aside the judgments and decrees of the Courts below. No order as to costs. Q.M.H./M.A.K./D‑/L Appeal allowed.