ADALAT KHAN vs MUHAMMAD KHAN AND Other
This petition seeks leave to appeal against the judgment of the Lahore High Court upholding the decision of the District Judge, Jhelum, which decreed a pre-emption suit in favour of the legal representatives of the original pre-emptor. The core legal question revolved around whether the right of pre-emption as a co-sharer is a personal right that abates upon the death of the pre-emptor before the conclusion of proceedings, or whether it survives for the benefit of his legal representatives. The Supreme Court held that the contentions raised by the petitioner lacked substance and that the pre-emption rights and powers were validly maintained and pursued through the legal representatives. The Court laid down that the right of pre-emption in such context does not lapse to the detriment of the legal representatives where proceedings are duly constituted and contested, and accordingly dismissed the petition for leave to appeal.
- Does the right of pre-emption as a co-sharer come to an end upon the death of the pre-emptor before the final decree is passed?
- Do the legal representatives of a deceased pre-emptor inherit an independent pre-emptive right or the pre-emptive rights held by the deceased?
- Can a pre-emption suit proceed when the original pre-emptor dies after participating in the sale and filing a suit?
- Order XLVII Rules 1 and 2, Code of Civil Procedure 1908
- Order XLV Rule 19, Code of Civil Procedure 1908
- Section 151, Code of Civil Procedure 1908
ORDER
MIAN BURHANUDDIN KHAN, J. This petition seeks leave to appeal from the judgment dated 1-2-82 of a learned Single Judge of the Lahore High Court, Rawalpindi Bench in R. S. A. No. 746 of 1966 whereby the judgment of the District Judge, Jhelum dated 12-7-1966 was upheld.
2. The petitioner purchased land measuring 27 kanals and 19 marlas in the revenue estate in village Gurah Mahal, Tehsil Jhelum by mutation No. 39 sanctioned on 13-4-1964 from Muhammad Ali.
Respondent Khushi Muhammad filed a suit for pre-emption on the ground that he was a co-- sharer in the suit land and the suit was decreed in his favour on 8-6-1965. Another suit for pre- emption, on the same ground, was filed by Noor Muhammad, predecessor-in-interest of respondents other than Khushi Muhammad. Before the issues were struck by the trial Court Noor Muhammad died and his Legal Representatives were brought on the record and Khushi Muhammad was also impleaded as a party in the second suit. The suit filed by Noor Muhammad was dismissed on 11-5-1966 on the ground that he, having participated in the sale, has waived his right of pre-emption, and after his death the right of pre-emption did not survive. Legal re-- presentatives of Noor Muhammad filed a civil Suit No. -145 against the petitioner and Khushi Muhammad which was accepted by the learned District Judge, Jhelum on 12-7-66. Against this judgment and decree passed by the District Judge, Jhelum the petitioner filed the R. S. A. Against the legal representatives of Noor Muhammad and Khushi Muhammad which was disposed of ex parte by a learned Single Judge of the Lahore High Court vide the judgment dated 19-4-80. A review application was filed under Order XLVII, rules 1 and 2 and Order XLV, rule 19 and section 151, C.
P. C. The appeal was restored and disposed of vide the impugned judgment.
3. Learned counsel for the petitioner contended that the right of pre-emption by Noor Muhammad as co-sharer was personal right which came to an end on his death which occurred before the impugned judgment and decree were passed after the period of limitation had run out, the legal representatives of Noor Muhammad, as such, had no independent pre-emption right on the date of sale nor any pre-emptive rights held by Noor Muhammad deceased devolved on them.
4. We have considered the points raised by the learned counsel and find that both of his contentions are without any substance. Khushi Muhammad derived pre-emptive powers as well as Adalat Khan when both of them were impleaded as parties in the suit filed by Khushi Muhammad.
Noor Muhammad was neither impleaded nor both the suit were consolidated despite the fact that the suit of Noor Muhammad was pending which was filed prior to the filing of suit by Khushi Muhammad. Obviously this petition has no merit and it is accordingly dismissed.