' TASSADUQ HUSSAIN JILLANI, J.--- Through this appeal the appellants have challenged the judgment and decree dated 4-5-2001 passed by a learned Judge of the Lahore High Court vide which he allowed R.S.A. No,113 of 1983 and reversed the judgment of the District Judge, Attock dated 2-7-1983 vide which he had dismissed respondents-plaintiffs' suit while setting aside the judgment and decree of the learned trial Court dated 15-6-1979.
2. Appellants purchased suit-land vide sale-deed dated 31-1-1976 which was challenged through pre-emption suit; the same was decreed. However, it was set aside by the District Judge and suit was dismissed. The Lahore High Court while reversing the finding of the District Judge decreed the suit holding that the respondents-plaintiffs had a superior right of pre-emption; that appellants- defendants by associating Ameer Khan as a co-vendee had brought a stranger to the transaction and thereby their case was hit by the principle of sinker. With regard to the argument that the vendees-defendants had improved their status inasmuch as after the death of Ameer Khan and his son Akhtar Khan at the appellate stage his granddaughter and grandsons namely Shehnaz, Masood Akhtar and Naeem Akhtar had become defendants and being collaterals had improved their status, the learned High Court has held that by virtue of section 21-A of the Punjab Pre- emption Act, 1913, the improvement in the status had to be that of the vendee-defendant himself and not the status of any of his heirs who were neither the vendees nor defendants in the original suit.
3. The learned counsel for the appellants in support of his appeal submitted that no doubt Ameer Khan was a stranger to Mst. Gahran but his legal heirs namely his grandsons (after the death of vendee Ameer Khan) had become heirs of the vendor and therefore, on account of improvement in their status their right of pre-emption had become superior to the respondents-plaintiffs. He further submitted that appeal is the continuation of trial and the improvement made by the appellants-defendants at the appellate stage had to be given effect to by dismissing the suit of respondents-plaintiffs. The learned counsel for the respondents defended the impugned judgment by submitting that a bare reading of section 21-A of the Punjab Pre-emption Act would indicate that the law stipulates that improvement in the status of a vendee after the institution of suit would not defeat the right of the pre-emiptor plaintiff except improvement made through inheritance of succession. But this improvement has to be in the status of the vendee defendant and not that of his heirs. Any improvement made in the status of the latter particularly after the judgment of the trial Court is of no consequence. In support of the submissions made he relied on Zahur Din and another v. Jalal Din and others AIR (31) 1944 Lah. 319; Thakur Madho Singh and another v. Lt. James R.R. Skinner and another AIR 1941 Lah. 433 and Muhammad Akram and 3 others v. Muhammad Rashid and 2 others PLD 1994 SC 848.
4. The only question in the instant case was the import of section 21-A of the Punjab Pre-emption Act and at what stage improvement made in the status of defendant has to be given effect to. This question has already been adjudicated by this Court in a case titled as Fazal Hussain v. Karam through Legal Heirs 2002 SCM R 648 wherein at page 651 it was held as under:-- ' "On the other hand, in this judgment, the argument that appeal was the continuation of the original suit which would be deemed to be pending when appeal is filed for the purpose of defeating the same on the improvement of status by the vendee was not accepted, for it was held that in appeal, the only question which is to be determined is as to what decree should have been passed by the trial Court on the day when it decided the suit through judgment under appeal, therefore, it has all along been held by the superior Courts consistently through judgments, that it is the date of final judgment of the trial Court in the suit of preemption on merits whether in favor of the plaintiff or the defendant that improvement of status of the vendee through succession if made before the said date, could defeat the suit and not otherwise. In the case of Zahur Din and another v. Jalal Din and others AIR (31) 1944 Lah. 319, the principles laid down are as under:-- "No doubt it is possible for a vendee to improve his status effectively up to the time of the adjudication of the suit against him and get it dismissed if on account of that improvement, he becomes either equal to or superior in status to that of the preemptor. But it is not possible to extend the date by which a vendee can improve his status beyond the date of the adjudication of the suit by the Court of first instance and he cannot, therefore, by improving his position during the pendency of an appeal defeat the pre-emptor when the decision of the first Court in the pre- emption suit against which the appeal was preferred was given on the merits whether rightly in the preemptor's favor or erroneously against him."
(10) Similarly was the rule' laid down in the case of Thakur Madho Singh and another v. Lt. James R.R. Skinner and another AIR 1941 Lah. 433, in which it was held as under:-- "A vendee can defeat the right of the pre-emptor by improving his status at any time before the passing of the decree in the pre-emption suit by the trial Court, as the rights of parties are adjudicated upon by the Trial Court alone and C the function of the Court of appeal is only to see what was the decree which the Court of first instance should have passed."
(11) Both the judgments are based on the principle laid down in the case reported in ILR 1942 Lahore
155. No deviation has been made from this rule in the case of Muhammad Akram (supra). In the present case, the question as to whether the respondents-plaintiffs had superior right of pre- emption was adjudicated upon On merits in favor of the respondents in the judgment which was originally passed by the trial Court on 23-2-1980 but the suit was dismissed on the ground of limitation, therefore, it was rightly held by the learned Judge in Chamber that apart from the fact that even if the said adjudication had gone against the respondent-plaintiff, the same would not have changed the position that improvement in the status by the vendee must have been made before the final judgment in the cases on merits was passed, may be against the plaintiff.
5. The learned counsel for the appellants has not been able to distinguish his case from the one to which reference has been made in the preceding paragraph. In these circumstances, we do not find the impugned judgment of the learned High Court to be exceptionable warranting interference. The appeal having no merits is accordingly dismissed.