1994 PLP 2492 (MLD)

By this single judgment I propose to dispose of C.R. No.325 and C.R. No.476 of 1993 as both these arise out of one pre-emption suit against the same judgments and decrees of the Courts below, whereby the learned trial Court granted a partial decree of 1/2 share in the sold property, in the sum of Rs.50.000 on the ground of co-sharership in the suit land, vide its judgment and decree, dated 13-2-1992, where against both the parties went in appeal to the 'Court of District Judge, Charsadda, who vide his judgment and decree dated 8-4-1993 dismissed both the appeals. Now the successors-in-interest of Mira Khan deceased-plaintiff (who died during the pendency of the suit) who may be called hereinafter as the plaintiffs have come up to this Court by filing C.R. No.325/93 (Naqeeb Khan and others v. Bismillah Jan), with a prayer that the judgments and decrees of the two Courts below may be modified to the extent decided against them and decree as prayed for regarding the whole of the suit land on payment of Rs.28,000 or whatever amount is considered by the Court, may be passed in their favour against the vendee-defendant Bismillah Jan who may be called hereinafter as defendant. The defendant has also filed Revision Petition No.476/93 praying therein that the judgment and decrees of both the Courts below maybe set aside to the extent of allowing suit of the plaintiff" and their suit may be dismissed.

2. Briefly stated, the facts of the case are that Mira Khan instituted a pre-emption suit on 6-7-1988 in the Court of Senior Civil Judge, Charsadda, for possession, of land measuring 28 Kanals, sold vide Mutation No.3534 attested on 14-7-1987 wherein sale consideration was mentioned as Rs.1,00,000. situated in the local limits of Muza Behlola, Tehsil and District Charsadda, on payment of Rs.28,000 or any other amount fixed by the Court. The plaintiff contended that he being co-sharer, contiguous owner and participator in immunities and appendages had superior right of pre-emption, and after making necessary demands, he instituted the present suit.

3. The defendant was summoned by the trial Court, who submitted h), written statement and the pleadings of the parties gave birth to the following, issues:

(1) Whether the plaintiffs have got a cause of action? (2) Whether the plaintiffs are estopped from suing? (3) Whether the plaintiffs have extinguished their right of pre-emption? (4) Whether the suit is properly valued for the purpose of court-fee and jurisdiction? (5) Whether the suit is partial? (6) Whether the suit is within time? (7) Whether the plaintiffs have got superior right of pre-emption? (8) Whether the amount of Rs.1,00,000 has been fixed and paid in good faith as the sale consideration of the suit land? (9) What is the market value of the suit land? (10) Relief.

4. The learned trial Court recorded evidence of the parties as they wished to adduce and after hearing the learned counsel for the parties, vide its judgments and decree, dated 13-2-1992, partially decreed the suit in favour of the plaintiffs. Appeals of both the parties also failed and now recourse to this Court.

5. I have heard the learned counsel for the parties in both the revision petitions and gone through the record of the case thoroughly with their assistance.

6. The resolution of the fate of the case revolving round the question that whether at the time of sale or institution of the instant suit the plaintiff was owner of the property on the basis of which he is claiming the superior right of pre-emption and if not its effect and before entering the discussion with regard to the legal implications of such a question certain facts are necessary to be mentioned.

7. That the Mutation No.3534 attested on 14-7-1987 vide which the property in dispute in the instant case was sold and the suit was instituted on 6-7-1988 and decided on 8-4-1993. The plaintiffs have based their claim, the superior right of pre-emption, on the property which was purchased vide Mutation No.3074 attested on 10-6-1979 which sale was pre-empted by one Asghar who could not succeed in the trial Court and his suit was dismissed on 30-4-1983 and on appeal to the District Judge, on acceptance of the appeal, .pre-emption decree was granted in his favour on 20-7-1985 the attested copy of which is on the file Exh.DW.l/1. The operating part of which is:

"On the view of the matter I grant decree to the plaintiff/appellant as prayed for against Rs.55,

000. The judgment and decree of the lower Court is hereby set aside. The plaintiff/appellant has already deposited Rs.15,

000. He is directed to make the deficiency in depositing the pre-emption amount within 30 days alongwith Rs.550 more which is incurred by the defendant on the mutation as District Council fee. On failure in deposit of pre-emption amount, the decree will be treated as null and void." The plaintiff who was the defendant in that case filed a revision petition in the High Court challenging the abovementioned decree of the appellate Court, and which was ended in a compromise on 8-10-1988. According to the judgment and order, of the High .Court, copy of which is Exh.DW.l/6 and also Exh.P.W.5/5 (as both the parties have produced the said copies in their evidence) and which reads as:

"Consequently this revision petition is accepted, order, dated 20-7-1985 of the appellate Court is set aside and that of the trial Court dated 30-4-1983 is restored and the suit of the plaintiff-respondent is dismissed as withdrawn. No order as to costs." The compromise deed, on the basis of which the revision petition was decided culminating in the abovementioned orders, certified copies of which is Exh.D.W.l/4 is on the file and para 2(c) of the said compromise reads as:

"That respondent-plaintiff is entitled to withdraw the amount of Rs.55,550 deposited by him in the Court as pre-emption money." And if this para. is read with the judgment of the District Judge, dated 20-7-1985 it will be evident that the pre-emption amount was deposited by the Asghar pre-emptor within the stipulated time i.e. 30 days from the date of order i.e. 20-7-1985, in other words, the pre-emptor has complied with the terms of the judgment and decree passed by the appellate Court in the year 1985. It may be further pointed out that the pre-emptor-plaintiff Mira Khan died during the pendency of the present suit.

8. The learned counsel for .the defendant contended that at the time of sale and at the time of institution of the suit the plaintiff was not the owner of the property on the basis of which he instituted the suit claiming to have a superior right of pre-emption while on the other hand the learned counsel for the plaintiff contended that at the time of granting decree the plaintiffs were the owners of the property on the basis of which they claimed superior right of pre-emption having a decree in their favour in previous pre-emption suit fled by Asghar against them. Once the suit has been withdrawn filed against him (original plaintiff)/them (now his successors) that amount to non-existence of the suit from the very beginning and the entire proceedings would be considered as no proceedings at all and nothing has happened and thus contended that the pre-emptor would be considered as the owner of the property continuously without any interruption with regard to his ownership.

9. This one lead to look at the various provisions of the N.-W.F.P. Pre -emption Act, 1987. According to section 2 of the Act ibid which pertains to the definition of the various terms and according to subsection (b) pre-emptor means a person who has the right of pre-emption. According to clause (c) the right of pre-emption means a right to acquire by purchase an immovable property in preference to other persons by reasons -of such rights. According to section 5 the right of pre-emption shall arise in case of sale in other words right of pre-emption means right of purchase in preference to other which arises in case of sale. The points involved in the case necessitates further elaboration of the right of pre-emption.

10. The word pre-emption is composed of two words prae

meaning before and emptio

meaning buy or purchasing or right to acquire property. In other words it means a right to purchase certain property in preference or before others. This preferential right of purchasing the property belonging to another arises or accrues. upon the occasion of transfer by the latter or it may be said that it arises in the case of sales. Likewise the word "Shaffa" means the amalgamation or conjunction of a property with the other property as the property of the pre-emptor is co-joined with the property sold. Legally it signifies the becoming of proprietor of property sold on payment of price paid by the vendee although the vendee may not be consenting thereto. It is not a right in the property sold but a right to control transfer and compelling the sale to himself in which respect he-has the sanction of the State in the shape of the law through which he can claim the assistance through Court in the exercise of his right. This right remains dormant or potential until the vendor sells his property and despite its existence it arises only when the sale has taken place or in other words the cause of action accrues to him and can be-exercised by him only when the sale takes place, in other word. the right of pre-emption has two phases, one is the primary right which may be called the potential or dormant or inherent right (the right to have an offer of intended sale) which exists all the times and the other is the secondary right which may be called the remedial right or the right of the motion which arises only the sale has taken place.

11. As evident from the discussion above, and the provisions of law that this right i.e. right of pre-emption which exists all the times in the form of first phase, in the dormant State and arises (takes the remedial shape for its enforcement) only when there is a sale, as on the day of sale his inherent rights are infringed which give him a cause of action and thus it is the date of sale on which the cause of action accrues to the pre-emptor and on that date the superiority of the right of pre-emptor over those of the vendees must be determined with reference- to the facts existing at that time. Section 6 of the Act ibid categorize the persons in whom this right vest and according to which

(i) in `Shaft Shareek' i.e. a person who is a co-owner in the corpus of undividable property sold with an another person, (ii) `Shaft Khalit' i.e. participater in the special rights attached to the immovable property sold, (iii) `Shah Jar' i.e. a person owning an immovable property adjacent to the property in dispute.

12. The cumulative effect of all the provisions mentioned above and that of the discussion that the right of pre-emption vests in a person who is having some property at the time of sale and when a person does not have such a property on the basis of which he would be claiming as Shafi Shareek". "Shad Khalit" or "Shaft Jar" at the time of sale then how he would claim that he is having a right of pre-emption when he is devoid of having such qualification. According to section 13 the right of pre-emption of a person shall be extinguished unless the three demands have been made in a prescribed manner in a prescribed period which presupposes the existence of the right of pre -emption and the person having such a right can exercise by making the demands and if the very right does not exist, then there is no question of making any demand and if made that would be futile exercise and would amount to fisticuffs in the air, in other words when there is no right of pre- emption, no such demand can be made and if any demand made without any purpose that would mean no demand made at all and in the absence of such demand right of pre-emption, if any, shall be extinguished.

13. Under section 17 right of pre-emption is abated when the property on the basis of which right of pre-emption is claimed is alienated before the decree of a Court, in other words the pre-emptor would only succeed in his pre-emption suit when he is having a subsisting continuous right of pre emption before passing of the decree but in the instant case first of all the petitioner was not the owner at the time of sale on which date the right of pre emption has arisen and also at the time of institution of the suit. As already stated that the pre-emptive right consists of two phases, first is the inherent right or primary right which vests in the. pre-emptor and the second is the remedial right and the remedial right arises at the date of the sale. The pre -emptive right exists with respect to the land in a particular person before the sale of such property takes place and becomes actuality at the completion of the bargain.

14. The repealed N.-W.F.P. Pre-emption Act, 1950 having a provision under section 29 that if a right of pre-emption i6 claimed on that basis of some land which is also a subject-matter of pre-emption in another suit, then the decision of the case is postponed till the period of limitation for enforcement of the right of pre-emption expires or till decision. of pre-emption suit if any but no such provisions find place in the new Pre-emption Laws and now it will be seen that what would be the effect of the proceedings in another pre-emption suit in respect of the property on the basis of which the pre-emptive right is claimed in the instant suit.

15. According to the learned counsel for the plaintiff that, as stated earlier, the withdrawal of the suit means the non-existence from the very beginning but this contention would hardly prevail. The learned counsel referred to Order 23, C.P.C. under which the suit had been withdrawn. According to the said provision if the suit has been withdrawn with the permission of the Court to file a fresh one, then one can file the suit. If no such permission has been granted then according to rule 3 of the said Order one shall be precluded from instituting any fresh suit in respect of such subject matter. In the suit in hand no such permission has been granted, so he could not institute any fresh suit and. the decision given on the basis of withdrawal of the suit is final and debarred him (plaintiff) from instituting a fresh suit, in other words the nature of relationship between the parties with regard to the subject-matter does not revive and the anti-date position is not restored and even if the permission has been granted by the Court to file a fresh suit, it would bring the parties back to the anti-date position i.e. original position with respect to their rights and liabilities inter se but not with relation to the other persons. Normally the withdrawal is not allowed when some rights have been accrued to the defendants, that may be on the basis of counterclaim, compromise or the partition proceedings etc. and if such a withdrawal is allowed the counterclaim of the defendant would be considered as a plaint and . would proceed independently.

16. The decree of the suit which was withdrawn was granted by the District Judge on 20-7-1985 and the claim of the plaintiff was not acceded to and by the said decree they were divested of the ownership/title in the property on the said date or in a month as para. (c) of Exh.D.W.l/4 (compromise deed) shows that the pre-emption money of Rs.55,550 had been deposited to which the decree-holder was held to be entitled for its withdrawal. According to Order 20, Rule 14 of C.P.C. in a pre-emption suit the date on which the pre-emption money was paid, the title would be deemed to have been accrued, in the pre-emptor, in other words the vendee would be no more owner of the property from the date of deposit of pre-emption amount and in the instant case it would be from the year 1985. Thus from whatever angle the merits of the case are looked at, the vendee-defendants have lost the right of pre-emption on the date on which the, appellate Court granted the decree and the amount was deposited in the previous pre-emption suit and admittedly in the present suit sale was effected in the year 1987 on which date the pre-emptors have got no right of pre-emption, neither on the principle, that on the date of sale or the time of institution they were the owners, nor on the principle of the non-existence of the previous suit on the basis of withdrawal. For what has been discussed above, while accepting C.R. No.476/93 (Bismillah Jan v. Naqeeb Khan and others), the judgments and decrees of the two Courts below to the extent of allowing suit of the plaintiffs are set aside and the suit of the plaintiffs is dismissed. Ipso facto C.R. No.325/93 fails which is hereby dismissed. However, the parties are burdened to bear their own costs. AA./1623/P Order accordingly.