MUHAMMAD SHUJA AND 4 OTHERS Versus SHER AFZAL KHAN AND 2 OTHERS

QAISAR KHAN, J. .‑On the basis of a registered sale deed, dated 24‑1‑1962 Malik Muhammad Ghaus sold 19‑190/272 marlas out of 7 kanals 6 marlas of land bearing Khasra No. 739/238, situated in Mhal Terahi of Peshawar Tehsil to Abdullah Jan for Rs. 10,500. On 22‑1‑1963 Haji Ghulam Mahboob pre‑empted the sale claiming superior right on all the three grounds allowed by law and giving the sale consideration as Rs. 5,250.

2. During the pendency of the suit Abdullah Jan transferred the land in dispute to Sher Afzal for Rs. 10,500 on the basis of a registered deed, dated 14‑5‑63. Sher Afzal was thereupon impleaded as defendant. Defendant No. 1 the vendor was proceed ed against ex parte, while Abdullah Jan and Sher Afzal contested the suit. On the pleas of the contesting parties the following issues were framed: --‑

(1) Whether the plaintiff had a cause of action?

(2) Whether the suit was within time?

(3) Whether it had been properly valued for court‑fee and jurisdiction?

(4) Whether the sale was exempt from pre‑emption under sec tion 5(c) of the Pre‑emption Act?

(5) Whether the disputed land was within the limits of the Municipal Committee and hence not pre‑emptible?

(6) Whether plaintiff had waived his right of pre‑emption?

(7) What was the effect of the sale of the disputed land by Abdullah Jan in favour of Sher Afzal

(8) Whether plaintiff had a superior right of pre‑emption

(9) Whether Rs. 10,500 had been fixed in good faith or paid as the sale consideration?

(10) What was the market value of the suit land?

(11) Relief.

3. After recording such evidence of the parties as they wished to adduce, the learned Civil Judge who tried the suit, by his order, dated 29‑4‑1964 held that the plaintiff had a cause of action, that the suit was within time, that it had been properly valued for court‑fee and jurisdiction, that the sale was not exempt from pre‑emption under section 5(c) of the

Pre‑emption Act, that the sale was not exempt from pre‑emption on account of the land being situated within the Municipal limits, that the plaintiff had not waived his right of pre‑emption, that the re‑sale to Sher Afzal did not affect the plaintiff's right of pre‑emption as it was made after the period of limitation for exercising the right of pre‑emption had expired, that the plaintiff had superior right of pre‑emption, that payment of Rs. 10,500 had been proved and that the market value of the land was also Rs. 10,500. Consequently he decreed the suit with costs on payment of Rs. 10,500.

4. Abdullah Jan and Sher Afzal went up in appeal to the Court of the District Judge, which was dismissed by the learned Additional District Judge by his order, dated 7‑11‑1964. The findings of the learned lower Court on issues No. 7 and 8 only were argued before him.

On issue No. 7 he upheld the finding of the learned lower Court and on issue No. 8 he held that Sher Afzal the second vendee had equal right of pre‑emption to that of the pre‑emptor.

5. The reasoning of the learned Additional District Judge for his finding on issue No. 7 were that section 16 did not admit of even by implication the importance of any person into the case as a vendee to demand of the pre‑emptor to maintain his qualifications as against such other person and that the scheme of section 17 revealed a cognizance of the doctrine of his pendens. Distinguishing the authorities laid down in Bahram Khan v. Sher Akbar and others (P L D 1960 Pesh. 1) and Abdul Malik v. Abdul Jabbar and others (P L D 1963 Pesh. 105) on the ground that the second sale therein had been effected during the period of limitation for pre‑emption and applying the doctrine of Us pendens, he held the second sale to have no affect on the superior right of the plaintiff‑pre‑emptor.

6. Sher Afzal, the second vendee, went up in second appeal to the High Court where the finding of the lower Courts on issue No. 7 only was questioned. The appeal was heard by Mr. Justice Faizullah Khan (as he then was) in Chambers who by his order, dated 13‑10‑1967 while accepting the appeal, set aside the judgments and decrees of the lower Courts and dismissed the suit of the plaintiff making no order as to costs. The learned Judge held that section 17 did not apply to the facts of the case as it dealt with transfers before the institution of the suit, and that even the newly‑added amendment to section 17 did not affect section 16. He further held that section 16 was applicable and that since according to the said section the pre‑emptor had to maintain his superior right till the date of the decree in the lower Court, any transfer during the pendency of the suit to a person having equal or superior right to that of the pre‑emptor whether made before or after the expiry of the period of limitation for pre‑emption non -suited the pre‑emptor.

7. This is Letters Patent Appeal filed by the Legal Representatives of Haji Ghulam Mahboob, the plaintiff, who in the meantime had died after obtaining a certificate for the same from the learned Judge who disposed of the second appeal. Mr. Abdul Rauf Khan, Advocate for the appellants and Mian Muhammad Yunas Shah, Advocate for Sher Afzal respondent heard at length. The rest of the respondents were proceeded against ex parte. The only point in dispute before us between the parties is as to what was the effect of a transfer by a vendee during the pendency of a suit for pre‑emption to a person having equal or superior right to that of the pre‑emptor whether made before or after the expiry of the period of limitation for pre‑emption. The decision of this point in turn rests on the interpretation of sections 16 and 17 of the N. W. F. P. Pre‑emption Act and for convenience sake the two sections are, therefore, reproduced here: --‑

"S. 16. No decree for pre‑emption shall be passed in favour of any person unless he has a subsisting right of pre‑emption at the time of the decree, but where a decree for pre‑emption has been passed in favour of plaintiff, whether by a Court of first instance or of appeal, the right of such plaintiff, shall not be affected by any transfer or less of his interest occurring after the date of such decree.

S. 17. (1) No suit for pre‑emption shall lie where the purchaser has, prior to the institution of such suit, transferred the property in dispute to a person, having a right of pre emption equal or superior to that of the plaintiff.

(2) Any improvement otherwise than through inheritance or succession made in the status of the vendee‑defendant after the institution of the suit for pre‑emption shall not affect the right of pre‑emptor‑plaintiff in such suit."

8. It is now settled law that the right of pre‑emption is a piratical right and it could be defeated by any legitimate means. The following are the possible legitimate methods by which the right of pre‑emption could be defeated by the vendee :‑

(1) If he transfers the land in dispute to s person having equal or superior right to that of the pre‑emptor before the institution of the suit.

(2) If he improves his own position during the pendency of the suit by making it equal or superior to that of the pre‑emptor.

(3) If during the pendency of the suit he makes the pre‑emptor, lose the right on which he claims the superiority.

(4) If he transfers the land in dispute to person having equal or superior right to that of the pre‑emptor during the pendency of the suit.

9. It has, therefore, to be seen as to what is the effect of sections 16 and 17 when anyone of these methods is resorted to by the vendee. Before discussing the effect of the two sections on the methods to be restored by the vendee, we would like to mention here that in R. S. A. No. 14 of 1963 "Abdul Majid and others v. Sahibzada Asif Jah" a Division Bench of this Court had held on 19‑6‑1959 that the newly‑added subsection (21 of section 11 had been misplaced and that in fact it was to be read as subsection (2) of section 16. Following this authority and taking subsection (2) of section 17 to be subsec tion (2) of section 16, we now proceed to deal with the effect of the two sections on the various methods mentioned above to be adopted for defeating the suit for pre‑emption.

10. If method No. I mentioned above is resorted to, then section 17 is quite clear on the point. In such a case the suit for pre‑eruption is not competent.

If method No. 2 is restored to, then the newly‑added subsec tion which is to be read as subsection (2) of section 16 applies and the improvement of the position of the vendee will be of no avail to him.

If the pre‑emptor on the other hand loses his superior right of pre‑emption during the pendency of the suit, then no decree can be passed in his favour in view of subsection (1) of section 16.

If, however, the vendee by transferring the land in dispute to a person having equal or superior right to that of the vendee during the pendency of the suit brings in that person as a defendant in the case, than there is no prohibition against C the employment of this method either in section 16 or 17.1 By this method the first vendee can create a situation in which he would be able to say to the pre‑emptor that he has not been able to maintain his superior right till the date of the decree which he was bound to maintain under section 16.

11. Even if the newly‑added amendment be read as subsection (2) of section 17, that would not help the situation created by the employment of the fourth method, because this amendment deals with the improvement of the right of the vendee during the pendency of the suit and has nothing to do with the transfer by the vendee in favour of another person having superior or equal right to that of the pre‑emptor.

12. In the instant case the first vendee has resorted to method No. 4 by transferring the land in dispute during the pendency of the suit to Sher Afzal respondent who had equal right of pre‑emption to that of the pre‑emptor, and in the circumstances the pre‑emptor had, therefore, failed to maintain his superior right under section 16 till the date of the decree. The finding of the learned Judge in Chambers on the issue of superior right is, therefore, perfectly correct which is maintained, with the result that the appeal fails and is dismissed with costs.

A. E.

Appeal dismissed.