' This revision is directed against the orders of the learned two Courts below one dated 2-1-2003 and the other dated 2-9-2003, whereby application of the petitioner for dismissal of the pre- emption suit of the respondent was rejected.
2. The brief facts, giving rise to this revision, are that the respondent brought a suit against the petitioner for possession through pre-emption of the land, detailed in the heading of the plaint. The petitioner contested this suit and filed a written statement. Out of the pleadings of the parties, the learned trial Court framed as many as 12 issues including the relief. After recording the evidence of the parties and hearing their counsel the learned trial Court decreed the suit of the respondent on payment of Rs.25,000 vide judgment/decree dated 23-10-2000. Feeling aggrieved, the petitioner filed an appeal.
3. During the pendency of the appeal before the learned District Judge, the petitioner came to know that the respondent has sold her land, on the basis of which, she claimed her superior right of pre-emption, vide registered sale-deed No.862, dated 4-10-2002. Accordingly, the petitioner filed an application before the learned trial Court for dismissal of the suit of the respondent. The trial Court rejected this application vide order dated 2-1-2003. Feeling aggrieved, the petitioner then filed an appeal but the learned District Judge also dismissed the same vide order dated 29-9- 2003. Now the petitioner has filed the present revision.
4. I have heard the learned counsel for the parties and have also perused the record.
5. In support of the revision petition, the learned counsel for the petitioner contended that in order to succeed to obtain a decree for possession though pre-emption, a plaintiff/pre-emptor must have a preferential right of pre-emption at the time of sale, at the time of institution of the suit and at the time of decree and the word "decree" used in subsection (1) of S.17 of the N.-W.F.P. Pre- emption Act, 1987 (hereinafter called the Act) means final decree of the Court whether that be of the trial Court or Appellate Court or revisional Court but in the present case, before decision of the appeal by the learned District Judge, the respondent disposed of her property in the disputed Khata on the basis of which, she was granted a decree as such, under the above provision of law her right of pre-emption stood abated and her suit was liable to be dismissed.
6. On the other hand, the learned counsel for the respondent contended that the word "decree" used in subsection (1) of S.17 of the Act means the decree of the original trial Court. In support of his arguments, the learned counsel for the respondent placed reliance on (1) (AIR 1924 Allababad 822) and (2) (1994 CLC 2020).
7. The argument of the learned counsel for the respondent is not without force. There is plethora of case-law right from the case of "Ram Gopal v. Piari Lal" (1891) 21 All. 441) that a plaintiff pre-emptor in order to be able to maintain a suit for pre-emption, must establish his right of pre-emption on three important dates, namely, the date of sale, the date of institution of suit and the date of final decree of the trial Court.
8. In the case reported in (AIR 1924 Allahabad 82) their Lordships of a Division Bench of Allahabad High Court have held that:- "It is well-settled law that plaintiff-pre-emptor in order to be able to maintain a suit for pre- emption must establish his right to pre-empt on three important dates. He must have a right of preemption at the time when the sale took place otherwise he would have no cause of action at all.
He must also have same right at the time when the suit is brought or else he would have no locus standi to sue. A possible view to take might have been that nothing which happens after the institution of a suit can alter the position of the parties. But it has been held in a number of cases by this Court that it is incumbent on the plaintiff to prove that his right of pre-empt continues up to the date when the decree ought to have been passed in his favour, namely, the date on which the case was disposed of by the first Court. It matters little whether the Court of first instance did actually dismiss or decree his suit. The date of that Court's decree is the date on which, if the plaintiff's contention is correct, the decree ought to have been passed in his favour."
9. Similar observations were made by the Hon'ble Supreme Court of AJK in the case reported in (1994 CLC 2020) in the following words:-- "After perusal of the case-law we are of the view that a preemptor in order to succeed must have preferential right at the time of sale, at the time of institution of suit and at the time of decree of the trial Court. Even if the plaintiff's suit was dismissed by the First Appellate Court and the plaintiff- appellant lost his right pending appeal he was still entitled to a decree if otherwise entitled to it. It matters little whether the Court of First instance did actually dismiss or decree the suit of the plaintiff. The date of that Court's decree is the date on which if plaintiff's contention is correct, the decree ought to have been passed in his favour."
10. I may also here quote section 233 of the Principles of Mohammedan Law by D.F. Mullah, 1977- Edition which reads:-- "Ground of pre-emption must continue until the decree is passed.---The right in which pre- emption is claimed---whether it be co-ownership, or participation in appendages, or vicinage--- must exist nor only at the time of sale, but at the date of the suit for pre-emption, and it must continue up to the time the decree is passed. But it is not necessary that the right should be subsisting at the date of the execution of the decree or at the date of the decree of the Appellate Court. The reason is that the crucial date in these cases is the date of the decree of the Court of first instance".
11. It will also be relevant here to quote a passage on page 562 of the Hedaya translated by Charles Hamilton, 1983 Edition:-- "If the Shafee previous to the decree of the Kazee sell the house from which he derives his right of Shaffa, the reasons or grounds of his right being thereby extinguished, the right itself is invalidated, notwithstanding he be ignorant of the sale of the house to which it related;-- in the same manner as where a man relinquishes his Shaffa without being informed of the sale, or acquits a person of a debt without knowing the amount; in the first of which cases the right of Shaffa is invalidated, and in the second the debtor is acquitted."
In the above passage, the word "Kazee" apparently means the Court of first instance or the trial Court.
12. It is well settled principle of Interpretation of Statutes that the Legislature must be presumed to know the course of the legislation, as well as the course of judicial decisions in the country, a fortiori of the superior Courts of the country. It is also well settled law that the legislative language shall be given its plain meaning. If in the light of the above principles of Interpretation of Statutes and the well-settled law laid down by the superior Courts and a passage quoted above from Hedaya, the word "decree" appearing in 5.17(1) of the Act in interpreted, then it would clear mean clearly final decree of the trial Court. The argument of the learned counsel for the petitioner is, therefore, without force, and is hereby rejected.
13. Accordingly this revision petition fails which is hereby dismissed with no order as to costs.