MUHAMMAD MUJTABA vs GHULAM ALI AND OTHERS

ORDER

' KARAM ELAHEE CHAUHAN, J.-The dispute in this case is about land measuring 3 kanals and 9 marlas situated in the revenue estate of Kalanjar, Tehsil Haripur, District Hazara. It was sold by Muhammad Swaleh etc. (vendors) to Jehandad, etc. (defendants/vendees) by mutation No, 2187 attested on 28-3-1961 for Rs, 3,500. Ghulam Ali (plaintiff/pre-emptor) filed a suit to pre-empt the said sale on the grounds of participator in immunities and owner of contiguous property. It may be mentioned that about eight years after the sale during the pendency of the suit on 19-1-1968 the original vendee further sold the land to the present petitioner Muhammad Mujtaba (minor) who then put in appearance in the suit and pleaded that he had equal right of pre-emption with and possessed the same qualifications as the plaintiff, therefore, his suit should be dismissed. This plea was accepted by the learned Civil Judge on 3-9-1968, who in this respect relied upon Sher Afzal Khan v. Haji Ghulam Mehbub and others (1).

2. The plaintiff/pre-emptor filed an appeal which was accepted by the learned. District Judge on 4- 10-1969, on the ground that a further sale pendente lite after the period of limitation for a suit of pre-emption, could not affect the right and the suit of a plaintiff pre-emptor who had pre-empted that sale within the relevant limitation period for this purpose. He relied upon Abdul Majid Khan v.

Shahzada As if Jah (2), s hich had dissented from Sher Afzal Khan v. Haji Ghulam Mehbub and others.

3. The petitioner (subsequent vendee) filed a second appeal but without any success as the same was dismissed by the Peshawar High Court on 25-2-1979. The petitioner has come up in a petition for special leave to appeal against the same to this Court.

4. Learned counsel for the petitioner has argued that as his client had an equal right of pre- emption with the plaintiff-pre-emptor, therefore, his suit ought to have been dismissed inasmuch as the original/first vendee had transferred the land to him in recognition of his that right. The contention has no merit. It has been held in long series of cases reported in Mst. Sant Kaur v. Teja Singh, and others (3), Moot Chand and others v. Ganga Jal and others (4), Wazir Ali Khan v. Zahir Ahmad Khan (5) and Munshi Mal v. Maghar Mal and others (6) that such a sale which is made after period of limitation for a suit for pre-emption, and during the pendency of a suit of a pre- emptor, cannot affect the right of the said pre-emptor so as to defeat his suit. The reason is that when the subsequent purchaser has allowed the period of limitation for instituting a suit for pre- emption to expire and has lost the use of coercive machinery of law for compelling the original vendee to surrender the property to him in recognition of his right of pre-emption then any transfer made to him by the original vendee must be regarded as a voluntary transfer of such title as the original vendee himself acquired under the original sale so as to attract the principle lis pendens. In such a case the transfer has not the effect of substituting the subsequent transferee in place of the vendee in the original bargain. He cannoi. Be regarded as anything other than a representative-in- interest of the original vendee, having no right to defend the suit except on the pleas that were open to such vendee himself and hence cannot plead his own equal or superior right of pre- emption and defeat the plaintiff's right to pre-empt. This position is further clear from the

(1) PLD 1968 Pesh. 81 (2) PLD 1970 Pesh. 37

(3) AIR 1946 Lab. 142 (4) AIR 1930 Lah. 356

(5) AIR 1949 E. Pb. 193 (6) A 1 R 1921 Lah. 363 "Explanation"which was added in section 16 of the N.-W.F.P. Pre-emption Act (XIV of 1950) by the N.W.F.P. Pre-emption (Amendment) Act VIII of 1972, puo.. Fished in the Extraordinary Government Gazette of N.-W.F.P. Dated 27-6-1972 (page 870). -Section 1(2) of the Amending Act laid down that "it shall apply to all suits or appeals pending on, or instituted after, the commencement of this Act."

The "Explanation" aforesaid laid down that "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." When confronted with this situation learned cousel for the petitioner submitted nothing in reply to the general principle of Its pendens mentioned above but simply argued that the word "appeal" in the above "Explanation", meant only first appeal and not the second appeal with the result that the law contained in that "Explanation" could not be given effect to in the second appeal before the High Court. There is no such reservation or limitation attached to the word "appeal" as used in the aforesaid "Explanation" and as such it is not possible to add any such string to that word as is being suggested by the learned counsel.

5. The result is that this petition has no merit and is dismissed.