Mst. SAID BEGUM AND Other vs NUR AHMAD AND Other

1. MUHAMMAD HALEEM, J.-This appeal by special leave is directed against the judgment of the Lahore High Court dated 20th of January, 1976, by which R. S. A. No. 600 of 1964 was partly allowed and the case was remanded to the trial Court for fresh decision.

2. The facts giving rise to this appeal are that Allah Dad son of Noor Ahmad, the predecessor-in- interest of the appellants, purchased 28 kanals and 9 marlas of land situate in Chak Darya, Tehsil and District Jehlum, shich sale was evidenced by Mutation No. 248 attested on 19th of May, 1962.

3. Kala and Allah Dad, sons of Ghulam Qadir, Noor Ahmad and Masood Ahmad, sons of Phalwan, his widow, Mst. Zainab, and one Sher Ahmad pre-empted the sale by instituting a suit in the Court of the Civil Judge on 9th of March, 1963, against Allah Dad, son of Noor Ahmad. Allah Dad took a preliminary objection in his written statement that the sale was not pre-emptiable as the land sold was evacuee property. The trial Court framed a preliminary issue to resolve this question and by judgment dated 18th of June, 1963, held that the sale was not pre emptiable. Accordingly, the suit was dismissed. The pre-emptors filed an appeal before the District Judge, which was dismissed on 29th of January, 1964, in limine. Thereupon, they went in second appeal to the High Court which was accepted as the land sold was held to be pre-emptiable and the case was remanded to the trial Court for deciding it on merits.

4. Allah Dad next filed a review petition in the High Court in which it was alleged that two of the appellants, namely, Kala and Allah Dad, sons of Ghulam Qadir had died during the pendency of - the second appeal on 19th of December, 1969, and 25th of July, 1971, respectively. Therefore, the appeal had abated in toto and the decree passed in second appeal was, accordingly, a nullity. This review petition was accepted, the judgment and decree was set aside and the appeal was set down for regular hearing. Allah Dad pressed his aforementioned objection in regard to the total abatement of the appeal but was unsuccessful as it was held that the appeal had partly abated qua the appellants Kala and Allah Dad and the case was again remanded to the trial Court for fresh decision.

5. Leave to appeal was granted to consider the question as to whether the appeal had abated in toto in view of the judgment of this Court in Shelkh Inayat A.I v. Ghulam Muhammad and others (1976SCMR 121).

6. The suit was filed on the premise that the respondents were the owners "in the Khata of the suit land" and, therefore, had a superior right of pre-emp--petition in terms of section 15(c), thirdly, of the Punjab Pre-emption Act, 1913, without specifying to what extent they were individually interested to pre-empt the sale of the suit land.

7. A learned Single Judge in the High Court held that such right is not jointly shared by one respondent with the others in a pre-emption suit. As such, any one of the respondents had a right to pre-empt the sale of the land subject to the limitation that it was only controlled by a similar right of other pre-emptors of equal degree. Therefore, in the case of various suits of pre-emption brought by persons having an equal right of pre-emption the property is awarded to all the pre- emptors in equal shares, and in the case of one suit where several persons having an equal right of pre-emption join to pre-empt the sale, each one of them is entitled in his individual right to a decree in respect of the entire property. Thus the withdrawal or death of one of such person would only have the effect of eliminating him from the case which would not affect the right of surviving persons to pre-empt the entire suit land.

8. The test to see whether the suit or appeal abates as a whole or only in part is to find out if the suit, in the first instance could have been instituted and prosecuted with the deceased plaintiff left out.

9. In other words, if the plain--tiffs could file separate suits then the abatement will only be in part.

10. The same criterion will apply to an appeal. If, on account of partial abatement, it becomes, for any reason, impossible to proceed with the suit to its final A conclusion, the entire suit will fail. The reason being that no decree can be passed or given effect to in so far as the rights of the parties actually before the Court are concerned, without interfering with the interest of the legal represent- -atives of the deceased party not brought on record. However, if this is not so then the suit abates partially.

11. Applying this test to the instant case, the right to pre-empt exists under section 4 of the Pre- emption Act with respect to the land or village immovable property in a particular person or persons before the sale of such property takes place and becomes an actuality at the completion of the bargain. It is a personal right in the sense that it is created in him by the provisions of section 15 and accrues on account of personal relationship which the pre-emptor may have with the vendor or it may appertain to him as a co-sharer in the property or a proprietor in that estate. It is also personal in the sense that his interest in pre-emptive property is protected solely against determinate individuals. Therefore, any person standing in that situation can file a suit for pre- empthig the sale of the property; and B if the number be more than one then they can join as plaintiffs to seek the same relief. Such right being personal, each one of them is entitled to prosecute the suit to the same extent as the others. And, if one of them withdraws or dies without his legal representatives being brought on record then this would not adversely affect the rights of the others. In Mahadeo Singh v. Talib A.I and others (AIR 1928 All. 345) one of the appellants-pre- emptors died during the pendency of the appeal and his legal representatives were not brought on record, the question arose as to whether the appeal had abated as a whole. Mukerji, J., said :- "The pre-emptor's right to pre-empt the whole of the property sold is independent of a similar right enjoyed by another person who stands in the same degree as regards the right of pre-emption as the other claimants. The fact, therefore. That two or more such claimants to a right of pre-emption join in one . Suit, instead of bringing separate suits of their own, cannot convert the separate rights of the several plaintiffs into a joint right."

12. Accordingly, it was held that the failure to bring the legal representatives of one of the appellants on record would not interfere with the right of the other appellants to prosecute their appeal. In Mohammad Wajid A.I Khan v. Puran Singh and others (AIR 1929 P C 58), one of the respondents, who had joined the - others to pre-empt the sale of the land, died during the pendency of the appeal filed by the vendee and his legal representatives were not brought on record,, consequently, the High Court rejected the appeal in toto. The question which arose for decision before the Judicial Committee was as to whether the High Court was correct in holding that the whole appeal had abated.. Sir John Wallis, who delivered the judgment observed thus :- "On the other hand, two or more co-sharers may simply sue the stranger --purchaser for pre- emption. As in the present case, without asking the Court to adjudicate on their rival claims and may obtain a decree for possession on depositing the pre-emption money in Court. In their Lordships' opinion the effect of that decree is to establish, as against the defendant, the right of each of the plaintiff-co-sharers to pre-empt him and to entitle them to possession on depositing the pre--emption money, leaving them to adjust their shares and priorities among them sends; these being matters in which the defendant has no concern so long as the pre-emption money is secured to him."

13. The learned counsel next relied on the observations of this Court in Wali and others v. Manak A.I and others in which the question was as to whether the agreement for sale should be interpreted as consisting of two agreements, one in favour of each vendee. It was held that this was not possible as it violated section 17 of the Specific Relief Act which did not permit the specific performance of a part of the contract ; and, therefore,! it was treated as one contract. It was further observed that this position was similar to that which arises in cases of pre-emption where, with respect to one sale deed in favour of more than one vendee, there can only be one suit for pre-emption. This observation cannot be extended to the case of the preemptors who have an individual right to pre-empt the sale of the property. And in case they join as plaintiffs, the death of one of them would not affect the others to prosecute the suit. To hold otherwise would be to deny to them their statutory rights. and is dismissed but with no order as to costs.