DIN MUHAMMAD vs ABRAR HUSSAIN and another

' SYED SAKHI HUSSAIN BOKHARI, 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- Muwathibae on 24-4-2003 and `Talb-e-Ishhad' 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, C.P.C. For rejection of the plaint on the ground that he had purchased suit land before "Talb-e-Ishhad", 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-Ishhad" on 25-4- 2003.On the other hand learned counsel for the respondent submits that according to impugned judgment appellants had made "Talb-e-Ishhad" on 30-4-2003. He has also referred to the reply of application under Order VII, rule 11, C.P.C. Filed by appellant wherein he (appellant) has admitted that "Talbe-Ishhad" was made on 30-4-2003. We have examined the said reply which shows that appellant has admitted that he had issued notice "Talbe-Ishhad" 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 N.1) on 28-4- 2003. As such he had sold land even before "Talb-e-Ishhad" and before institution of the suit. So learned trial court had rightly rejected the plaint. The impugned judgment shows that learned High Court had 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 preemption 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 preemption should have been filed. Thus institution of pre-emption 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.