DIN MUHAMMAD vs ABRAR HUSSAIN & another
This appeal by leave of the Court is directed against the judgment of the Lahore High Court whereby a revision petition filed by the respondent was accepted and the rejection of the plaint in a pre-emption suit was restored. The core legal question involves whether a pre-emption suit is maintainable against a defendant who had transferred the suit land to a subsequent vendee prior to the institution of the suit and before the fulfillment of necessary pre-requisites like Talb-e-Ashhad. The Supreme Court held that since the subsequent sale took place prior to the institution of the suit and before Talb-e-Ashhad, the principle of lis pendens does not apply, and instituting a pre-emption suit against a person no longer vested with title is an exercise in futility. The key principle laid down is that a pre-emption suit must be brought against the person holding title at the relevant time, and further sales prior to institution cannot be challenged by ignoring the subsequent vendee.
- Whether a pre-emption suit is maintainable against a person who has transferred the suit property prior to the institution of the suit?
- Does the principle of lis pendens apply to a further sale transaction executed prior to the institution of a pre-emption suit?
- Can a plaint be rejected under Order VII Rule 11 of the Code of Civil Procedure 1908 when the plaintiff has no cause of action due to a prior transfer of title?
- Order VII Rule 11, Code of Civil Procedure 1908
Syed Sakhi Hussain Bukhari, J.--This appeal with leave of the Court is directed against the judgment dated 14.5.2007 passed by Lahore High Court, Lahore whereby revision petition brought by respondent was accepted.
2. Relevant facts for the disposal of this appeal are that Muhammad Jameel (Respondent No, 2) purchased suit land vide sale Mutation No, 4564, dated 31.1.2003. Din Muhammad, appellant, filed suit for possession through pre-emption on 5.5.2003 and stated that he had made `Talb-e- Muwathibat' on 24.4.2003 and Talb-e-Ashhad' on 30.4.2003. The record shows that Muhammad Jameel (Respondent No, 2) had transferred suit land in favour of Abrar Hussain (Respondent No, 1) through registered sale-deed dated 28.4.2003. During pendency of the case Abrar Hussain (Respondent No, 1) filed application under Order VII, Rule 11 CPC for rejection of the plaint on the ground that he had purchased suit land before Talb-e-Ashhad', therefore, plaintiff has no cause of action. His application was accepted on 19.2.2004. The appellant challenged this order in appeal which was accepted on 7.6.2006. The respondent filed revision petition there against which was accepted vide impugned judgment and order of trial Court was restored. Hence this appeal.
3. We have heard the arguments of learned counsel for the parties and perused the record.
Learned counsel for the appellant submits that appellant had made Talb-e-Ashhad' on 25.4.2003.
On the other hand learned counsel for the respondent submits that according to impugned judgment appellant had made Talb-e-Ashhad' on 30.4.2003. He has also referred to the reply of application under Order VII, Rule 11 CPC filed by appellant wherein he (appellant) has admitted that Talb-eAshhad' was made on 30.4.2003. We have examined the said reply which shows that appellant has admitted that he had issued notice Talb-eAshhad' on 30.4.2003. So it seems that plaintiff/appellant has given incorrect date (25.4.2003) in Para-4 of copy of plaint (Page 49 of the paper-book). Admittedly appellant filed suit on 5.5.2003 whereas Muhammad Jameel (Respondent No, 2) had transferred suit land in favour of Abrar Hussain (Respondent No, 1) on 28.4.2003. As such he had sold land even before Talb-e-lshhad' and before institution of the suit. So learned trial Court had rightly rejected the plaint. The impugned judgment shows that learned High Court has decided the revision petition brought by respondents after consideration of each and every aspect of the case and appraisal of entire material available on record. It is a well reasoned judgment. Moreover according to the case of Abdul Yameen Khan v. Ashrat Ali Khan (2004 SCM R 1270), further sale in favour of Abrar Hussain (Respondent No, 1) prior to the institution of pre- emption suit could not be brought within four corners of the principle of lis pendens and since a further sale transaction had already taken place, it was the vendee of that further transaction against whom suit for pre-emption should have been filed. Thus institution of preemption suit against a person who was no more vested with title would be nothing but an exercise in futility. So we find that impugned judgment is just and proper. There is no illegality or infirmity in the same so as to warrant interference by this Court. This appeal has no force and the same is accordingly dismissed. No order as to costs.