SAYED ZAHID HUSSAIN, J.- ln a suit for preemption instituted by the respondent an application for rejection of the plaint was filed by the petitioner-vendee, which application was accepted by the learned Trial Judge on his view that the suit was for partial on 7.6.2004. Appeal preferred thereagainst by the respondent-plaintiff, however, succeeded before the learned Appellate Court.
Vide his judgment dated 25.10.2004, by reversing the order of the learned Trial Court, the matter was remanded by the learned Additional District Judge, Faisalabad for decision of the suit in accordance with law. This is appeal by the vendee- defendant qua the above-mentioned appellate judgment.
2. The learned counsel contends that not only the suit was for partial pre-emption and the plaint was rightly rejected by the learned Trial Court, the suit was barred by time as well, lt is contended that the learned Appellate Court has misconstrued the provisions of Sections 19 and 20 of the Punjab Pre-emption Act, 1991.
3. Ln order to support the view taken by the learned Appellate Court the learned counsel for the respondent refers to the provisions of Sections 19 and 20 of the Act and contends that the suit could only be filed by the said respondent qua the property which was "pre-emptiable" and the suit was not hit by the principle of partial preemption. He has made reference to Feroze Khan and 3 others Vs. Ahmad Yar (1992 MLD 1570), Muhammad Latif Khan and others Vs. Lal Khan and others (PLD 1979 SC (AJK) 123), Abdul Rehman Vs. Muhammad Khan alias Khan Muhammad (2003 MLD 374), Sarfraz Khan Vs. Nimatullah Khan (2002 SCMR 751), Malik Hussain and others Vs. Lal Ram Chand and others (PLD 1970 SC 299), Ali Akbar Vs. Muhammad Anwar (Law Notes 1980 SC 53), Allah Din and others Vs. Jan Muhammad and others (PLD 1951 Lahore 163) and Dhala Vs. Khanun and others (AIR 1935 Lahore 635) in support of his contention.
4. The appellant-vendee had purchased land measuring 17 Kanals, 16 marlas through sale deed dated 17.7.2003. The suit instituted by the respondent was for half of the land as he had claimed his equal right of pre-emption, i.e. Equally entitled with the vendee. Such suit was treated as for partial pre-emption by the Trial Court who ordered the rejection of plaint whereas the learned Appellate Court has taken the view that the suit was not hit by the principle of partial pre-emption as the respondent-plaintiff has sued for "the whole of the property pre-emptiable". Such a view has been taken by him in view of the provisions of Section 19(2) read with Section 20 of the Act. Thus the controversy that has cropped up in the instant case is whether the suit instituted by the respondent-plaintiff was hit by the principle of partial pre-emption and the approach adopted by which of the to Courts was correct and consistent with the law. Ln order to comprehend the legal provisions attracted to the matter, reference to provisions of Sections 19 and 20 of the Act, may be of relevance which are reproduced hereunder:- "S. 19. Right of pre-emption non-transferable and indivisible".
(1) Save as provided in section 16, the right of preemption shall be non-transferable and indivisible.
(2) The claim for pre-emption shall be made on the whole property pre-emptiable.
"S. 20. Where the pre-emption and vendee equally entitled-Where the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right of pre-emption, the property shall be shared by them equally."
5. The import of the provisions of Section 20 is that where the pre-emptor and the vendee fail within the same class and have equal right of pre-emption, the property shall be shared by them equally.
Though sub-section (1) of Section 19 of Punjab Pre-emption Act, 1991, prohibits (subject to provisions of Section 16 of the Act), the divisibility of right of re-pre-emption, sub-section (2) lays down that the claim for pre-emption shall be made on the whole property pre-emptiable. The key phrase in the context is "the whole property pre-emptiable". The question, therefore, arises that when the right of the respondent-plaintiff extended to half of the property pre-emptiable could he be non-suited by applying the principle of partial pre-emption, ln Dhala Vs. Khanun and others (AIR 1935 Lahore 635), it was highlighted that "it is a well-established principle of the law of pre-emption that a pre-emptor, whose right extend over the entire property sold, must take over the bargain in its entirety, and has no right to pre-empt a part of the property sold on payment of a proportional part of the price." lt was observed that the plainjiff was not entitled to treat the transaction as divisible, as in such eventually, the suit might be hit by the principle of partial pre-emption. That was a case where the right of preemption extended to the entire property, ln Allah Din and others Vs. Jan Muhammad and others (PLD 1951 Lahore 163), it was observed that the right of pre-emption was a right of substitution and in exercise of that right the plaintiff must take over the whole bargain, certain exceptions to the rule were, however, stated including the one that "The preemptor can only sue in respect of that part of the bargain over which he can assert his superior right as against the vendee. Of course, he cannot omit to chain any of the property comprised in the bargain to which his right of preemption extends." ln Malik Hussain and others Vs. Lal Ram Chand and others (PLD 1970 SC 299), it was observed that The right of pre-emption is in essence a right of substitution, it means that the pre-emptor, in the event of the success of his claim, stands in the shoes of the vendee as respects all rights and obligations arising form the sale of the property under pre-emption", lt was, however, noted that "A preemptor is not bound to seek pre-emption of the whole of the property sold and pay the sale price if his right of preemption extends over only a portion of the property sold." (Emphasis supplied by underlining), ln Ali Akbar Vs. Muhammad Anwar (1980 Law Notes (SC) 53), it was observed that "Concept of partial pre-emption comes into play when pre-emptor does not ask for his substitution in respect of the whole of the subjeQt- matter of sale to which right of pre-emption extends." (underlined by me), lt was observed that "A pre-emptor is not to pay the full sale price if his right of pre-emption extends over only a portion of the property sold or if a portion of the property is capable of preemption and the Other is not." ln Muhammad Latif Khan and others Vs. Lal Khan and others (PLD 1979 SC (AJK) 123), the Supreme Court of Azad Jammu and Kashmir also had taken a similar view and it was observed that "No pre- emptor can be'permitted to have a portion of the property even on payment of the whole price. If it is allowed, it would frustrate the basic policy on which the pre-emption right is based.
This, however, is subject to certain limitations.".......... "that a pre-emptor is not bound to seek pre- emption of the whole of the property sold and pay the full price if his right of preemption extends over only a portion of the property sold or if a portion of the property is capable of pre-emption and the other is not."
The view so taken is consistent with the view adopted by the Courts in Pakistan even under the erstwhile pre-emption law. On repeal of Punjab Pre-emption Act, 1913, Punjab Preemption Act, 1991 (Act IX of 1991) was enacted to bring the law in conformity with the Injunctions of Quran and Sunnah.
6. Section 20 of the Act, IX of 1991 ibid came to be considered by the learned Bench of this Court in Feroze Khan and 3 others Vs. Ahmad Yar (1992 MLD 1570) that 'Section 20 of Punjf b Pre-emption Act, 1991, embodied a rule of Islamic Law, II lat in case of plurality of persons having equal right of Shuffa, the property would be distributed per capita among them equally. As the pre-emptors were four in number poised against a sole vendee, they would be entitled to 4/5th share of the property sold leaving the vendee with 1 /5th share in it. Above rule for distribution of the preemptive property belween equally classed pre-emptors and the vendee found recognition in a celebrated judgment of Allahabad High Court in case of Amir Hassan (plaintiff) v. Rahim Bakhsh and others (defendant)
ILR 1999 All. 466."
Some observations in Sarfraz Khan Vs. Nimattullah Khan (2002 SCMR 751) which appear in paragraph 5 of the judgment are also useful and are reproduced "5. Coming to the equal right claimed by the vendee, we have no doubt in our mind that joint right of pre-emption can be exercised by a person, by a class or group of persons either jointly or severally as provided under section 8 of the N.W.F.P. Preemption Act, 1987. VJe are also mindful of the fact that under section 9 of the Act, where more than one person are found by the Court to be equally entitled to the right of pre-emption the property shall be distributed amongst them in equal shares." lt may be mentioned that identical provisions exist in the N.W.F.P. Pre-emption Act, 1987.
Ln Muhammad Yousaf Vs. Ghulam Muhammad and 5 others (2002 YLR 0764), a Division Bench of this Court observed that "the total effort in enacting the Punjab Preemption Act, 1991 was to adopt the Islamic principles on the law of pre-emption, therefore, one has to look to the Islamic notion of pre-emption and it is not difficult to find that under the Islamic Law where the right of the pre- emptors and that of the vendees is adjudged to be equal, the property or the land forming subject matter of the sale is to be shared by them equally. The legislature in its wisdom, theiefore, incorporated this principle in section 20 of the Punjab Preemption Act so as to incorporate the complete intention of the principles of Islamic Law of Pre-emption. Need we refer to the Preamble of the Ordinance which reads as follows:- "Whereas it is expedient to re-enact the existing law relating to pre-emption so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur'an and Sunnah".
The reference to the Preamble as afore-noted would clinch the arguments being raised by the learned counsel for the appellant. The above-said aspect apart, even otherwise it is to be noted that the total law of pre-emption based or the principle of warding off a stranger in the vicinity and a Mohallah of a town and land in the village, lt is not to farfetched to understand that where the pre-emptor and the vendee are found to be equally placed, the dismissal of the suit as was done under the old Act was not considered to be proper for it would strengthen the vendee and weaken the pre-emptor in the sense that latter would not get any share from the sale. After all it is the choice of the pre-emptor to accept any stranger and he may not file any suit but if he chooses to file a suit, and is ultimately found that the vendee against whom such a suit if filed is also equally placed, the land of the vendor must be equally shared so that the preemptor and the vendee may use such land for any further exercise of right for the right of pre-emption arises out of the land that owns". Similar was the view taken in Muhammad Hayat Vs. Faiz Ali and another (K.L.R. 2003 Civil Cases 125).
Thus the provisions of Sections 19 and 20 of the Act, IX of 1991 have been enacted to bring the law on the subject in conformity with the Injunctions of Quran and Sunnah.
7. Lt is established rule of interpretation that while construing a statutory provision each word is to be given meaning and is not to be rendered as redundant. While doing so, however, the language is not to be twisted into a meaning which it cannot bear or results in irrationality or