' GHULAM RABBANI, J.--- This civil appeal with leave of this Court is directed against the judgment dated 4-10-1999 passed by a Single Judge of Lahore High Court, Lahore dismissing Regular Second Appeal No,2 of 1979 filed by him.
2. Relevant facts are that late Pehlwan Khan father of respondent instituted on 5-12-1970 a suit for possession of the suit-land by preemption admeasuring 89 Kanals and 7 Marlas on the ground that he was collateral of vendors, co-sharer in the suit-land Patti and an owner in the Deh.
Appellant contested the suit and on 28-1-1973 filed his written statement; consequently issues were framed and both the parties adduced their evidence. However, before the suit could be decided, Pehlwan Khan died on 28-1-1973 and for impleading his legal representatives an application was filed on 12-2-1973. During pendency of that application, Muhammad Sadiq respondent, a son of deceased pre-emptor, filed on 7-3-1973 another application that he be allowed to pursue the suit.
The appellant, who, initially, took exception to that application by saying that the suit had abated; consented subsequently and the application was allowed. An amended plaint was filed on 22-12- 1973 followed by an amended written statement which gave rise to an additional issue as regards the limitation of the suit in the change circumstances. Since both the parties did not wish to lead any evidence on the additional issue, the Civil Judge, Gujrat, on available material, decreed the suit in favor of all the legal heirs of late Pehlwan, the original plaintiff, on payment of Rs,40,000 vide judgment dated 26-4-1976; although, all the legal heirs had not liked to continue the suit. The present appellant preferred thereagainst appeal which was dismissed vide judgment dated 13-6- 1978 passed by the Additional District Judge, Gujrat. Feeling aggrieved appellant filed regular second appeal, which too, met the same fate vide judgment impugned herein.
3. Leave was granted by this Court vide order, dated 20-2-2001 to consider, (a) whether right of pre-emption is heritable or otherwise? (b) whether the learned High Court has failed to follow the principles of law and the facts of the case enunciated by this Court in the judgment in Aziz-ur- Rehman v. Muhammad Nawaz PLD 1988 SC 384 and Muhammad Younus v. Khushal 1989 SCM R 69?
And (c) whether the High Court was right in holding that after amendment in Order XXII, rule 2, C.P.C. The suit of pre-emption will not abate on the death of original pre-emptor? If so, to what effect.
4. Mr. Muhammad Farooq, Advocate Supreme Court learned counsel for petitioner argued that the right to sue for pre-emption was not heritable and that after death of original owner the suit stood abated. He took a plea that neither the respondent possessed superior right of pre-emption at the time of sale viz. On 6-12-1969 nor at the time of institution of suit; viz. 5-12-1970, therefore, a decree could not have been passed in his favor. Learned counsel contended that learned Single Judge of Lahore High Court, Lahore, before whom the judgments reported as Aziz-ur-Rehman and others (supra) and Muhammad Younus (supra) were cited, failed to interpret the same correctly and dismissed the regular second appeal of the appellant illegally and unlawfully. He stressed that the impugned judgment and the judgments of two Courts below in favor of respondent were not sustainable at law and the same be set aside.
5. On the other hand Mr. Muhammad Munir Peracha, Advocate Supreme Court learned counsel for respondent controverted the above submissions and supported the impugned judgment and the judgments of two Courts below: Mr. Peracha argued that Pehlwan Khan died after instituting the suit and the respondent as his legal representative had taken his place, therefore, the suit would not abate but could be continued within terms of Order XXII, rule 3, C.P.C. In support he relied on cases reported in PLD 1975 Lah. 1205 and 1976 SCM R 121. He, stressed that learned Single Judge correctly interpreted the cited case of Aziz-ur-Rehman and others; and Muhammad Younus (supra) and had rightly dismissed the second appeal of respondent.
6. The first question for our consideration relates to heritability of right of pre-emption and the other is whether, in this case, principles of law and facts in case of Aziz-ur-Rehman and others (supra) and the case of Muhammad Younus (supra), palpably relating to the question of heritability of right of pre-emption, have been followed. Both these questions are, inter-linked and would be dealt with together. It may be stated, in this behalf, that the land involved in case of Aziz- ur-Rehman and others (supra), was located in N.-W.F.P. The sale of that land took place during the life time of respondent's father who was a co-sharer and a contiguous owner of the land. On his demise the respondent claiming to be the co-sharer and contiguous owner; by inheritance, pre- empted the sale through a suit for possession which was decreed. The Appellate Court set 'aside the decree and dismissed the suit. On a revision application made by respondents, Peshawar High Court restored the decree which was challenged by way of a civil appeal. In that, leave was granted by this Court, to consider, "whether the decision of holding the right of pre-emption to be inheritable was neither in accord with the Muslim Law of Pre-emption nor the N.-W.F.P. Pre-emption Act, 1950 recognized any such right and that the right of person to sue for preemption was a simple personal right". This point was answered, inter alia, in the circumstances next to follow.
7. Learned High Court had restored the decree in the cited case, relying on Faqir Ali Shah's case 133 PR 1907 p.636 and the case of Wajid Ali v. Shaban ILR 1909 Vol. 31 All.
623. In the first mentioned case the Full Bench of Punjab Chief Court held that "a right to sue for pre-emption upon a cause of action which accrued to a person in his life time passes at his death to his successor who inheiits the property through which the right had accrued". In holding so learned Full Bench of the Punjab Chief Court based its decision on the rule that since the right of pre-emption passed with the land; the person who inherits the land should also be able to exercise that right meaning thereby that it was heritable right. Similar view was taken in another case.
However, subsequently, Lahore High Court in case of Faiz Muhammad AIR 1944 Lah. 172 and the Allahabad High Court in case of Chhajju and others AIR 1947 All: 297 took a contrary view. It was held that, "it was necessary that the pre-emptor must show that he had a superior right to pre- empt which he had at the date of the sale which continued to remain superior at all relevant times, otherwise his suit must fail". In doing so reference was made to section 4 of the Punjab Pre-emption Act para materia with section 4 of N.-W.F.P. Pre-emption Act (XIV of 1950). It was observed that 'the right to acquire a property by right of preemption arises on the date of sale and, therefore, it should be in existence on that date". Besides, it was also noted that Peshawar High Court, had, in another case of Muhammad Younus v. Khushal Civil Revision No,115 of 1978, held that 'the pre-emptor must possess the right on a date of sale".
8. On consideration of above facts, circumstances, and the relevant law, the point framed in the case Aziz-ur-Rehman and others was, thus, answered that, "a pre-emptor who had no right on the date of sale could not improve his right after the sale by inheritance as the cause of action had already come into existence and the subsequent qualification by inheritance could not vest him with superior status after the accrual of cause of action". And it was held that the pre-emption suit must fail as the respondent lacked the necessary qualification on the date of sale. As regards the examination of the question in the light of Muhammadan Law, it was observed that, it was not possible to do so beyond the text of the Act itself and in that, reference was made to section 6 of N.-W.F.P. Pre-emption Act.
9. It will be important to note from the above narration that in deciding the case of Aziz-ur-Rehman and others (supra), reliance was placed among others, on the case of Chhajju and others in which, it was laid down that 'the crucial dates on which the plaintiff in a pre-emption suit must establish his subsisting title are date of the sale, the date of suit and the date of decree and that this had a reference to the property on the strength of which the suit for pre-emption was brought".
10. To see whether learned Single Judge of Punjab High Court failed to follow the principles of law and the facts of the case enunciated by this Court in the judgment in Aziz-ur-Rehman and others, it will be appropriate to look at the impugned judgment wherein the cited case was referred.
Following passage from it is relevant:-- "para.3 ... Learned counsel for the appellant laid much stress on a passage quoted from the case of Muhammad Ismail v. Abdul Rashid and others AIR 1956 All., 1 in which case the question was examined in the context of the Hanfi School of thought and it was held that the right of pre- emption does not survive to the heirs after the pre-emptor dies before obtaining a decree in his favor. In my humble opinion the said passage was quoted with reference to the observations made in the judgment to the effect that section 6 of the N.-W.F.P. Pre-emption Act specifically lays down that the right of pre-emption shall exist subject to the provisions and limitation contained in the Act, therefore, it is not possible to examine the question in the light of Muhammadan Law beyond the text of the Act itself. It is thus, apparent that the said passage quoted from the case of Muhammad Ismail was not made the basis of the ratio of the judgment, but it was the fact that the pre-emptor in the case lacked a right of pre-emption on the date of sale. So far as the other judgments referred to in the said case of Aziz-ur-Rehman are concerned, the same are also to the effect that whereas the vendee by statutory permission can improve his status even if the sale till the time the suit is instituted, the pre-emptor has no such privilege and he is to establish that he was qualified to file a suit under the relevant law on the date the same took place. Besides the facts of the said case, as reproduced above, also show that there was no doubt that the pre- emptor in the said case had no right on the date of sale and had relied upon the ownership of the land by his father on the said date."
' And that, "para.7. I have already stated above that the Supreme Court in the case of Aziz-ur-Rehman did not rely on the principles of the Hanfi School of thought which were made basis for the observations from the case of Muhammad Ismail AIR 1956 All.
1. Needless to state that the facts and circumstances of the said case were distinguishable from the present case as the original pre-emptor had in fact filed a suit and admittedly had a right of pre-emption on the date of sale."
11. Reading through above passage will reveal that learned Single Judge in deciding this case was of the view that the case of Aziz-urRehman and others (supra) could not be made applicable and did, not follow the same for the reasons that the facts and circumstances of the case of Aziz-ur- Rehman and others (supra) were distinguishable and that the principles of Hanfi law were not relied upon in the case. Evidently, learned Single Judge did not give weight to the pivotal/relevant point determined in that case i,e, that the pre-emptor, now the respondent himself in this case lacked the necessary qualification on the date of sale and that subsequent qualification by inheritance could not vest him with superior status after the accrual. Respondent's father Pehlwan, the original pre-emptor, as held in the case of Chhajju and others (supra), as well could not establish his subsisting title on the date of decree palpably continue to have the feeble and predatory right of pre-emption enforced. Be that as it may, in case of Muhammad Younus (supra), wherein, the point for consideration(in both the appeals) was "whether the appellant who did not possess the superior right of pre-emption at the time of sales but subsequently acquired this right by inheritance, could avail of his improved status to pre-empt the sales of the disputed properties.
In other words, the question was "whether the right of pre-emption is heritable", Justice Muhammad Haleem, Chief Justice (as then he was) speaking for the five members Bench, observed in unequivocal terms that 'this question came up for consideration in Aziz-ur-Rehman and others v. Muhammad Nawaz PLD 1988 SC 384, and it was held that the right to pre-empt the sale was not heritable, therefore, the sale cannot be preempted". Learned Judge in Chambers did not at all, discuss in his judgment as to what principle was laid down in that case. Accordingly, we do not feel ourselves inclined to agree with Mr. Peracha that learned Single Judge of Lahore High Court correctly interpreted the cited cases i,e, Aziz-ur-Rehman and others and Muhammad Younus (supra). He failed to follow the principles laid down therein.
12. Coming to the remaining question whether the suit would not abate on the death of original pre-emptor in the light of provision of Order XXII, C.P.C. It may be stated, at the outset, that the object of substituting the legal representative of a deceased plaintiff is merely is to continue the suit and consider the rights and disabilities of original party on whose death substitution takes place. The law settled in case of Chhujju and others followed by or approved in the cases cited in the foregoing paras is that in a pre-emption suit, the plaintiff must establish his subsisting title on the date of sale, the date of suit and the date of decree. In the instant case the original plaintiff with right of pre-emption had, before a decree could be passed, breathed his last and as a plaintiff, he could not establish his subsisting title on the date of decree. In case of Muhammad Younus (supra), the question 'whether the right of preemption is heritable" was considered and relying on the case of Aziz-urRehman and others, it was held that the sale could not be pre-empted. The word "heritable" as defined in Concise Oxford Dictionary (Ninth Edition of 1995 edited by Della Thompson) denotes (a) (of property) capable of being inherited by heirs at law, '(b) capable of inheriting. Also in Black's Law Dictionary (Eighth Edition by Bryan A. Garner), the term "heritable has been defined to mean (1) (of property) capable of being inherited (2) (of a person) capable of inheriting. Speaking conversely, the term "not heritable" may be construed as "not capable of being inherited".
Therefore, if the respondent is impleaded as a legal representative of the original pre-emptor who having failed, for obviously reasons, to continue his right before the decree could be passed; stretching the process of suit to consider his right shall lead to unconscionable consequences. The point at issue is, thus, answered accordingly.
13. Cumulative effect of above discussion is that we hold that the respondent himself had no right on the date of sale and thereafter to preempt the same by inheritance. Also, in this case, he could not improve his qualifications to have such right, if any, enforced after the sale, accordingly.
14. Before concluding, it may be stated that Mr. Munir Peracha, Advocate Supreme Court learned counsel for respondent placed reliance on case of Sheikh Inayat and the case of Muhammad Iqbal and others (supra). In both the cases, though the facts are distinguishable, the case-law referred to in the instant case was not under review in these two cases, therefore, the same will be of no assistance to the case of respondent.
15. For the foregoing reasons, we allow this appeal and set aside the impugned judgment and the judgments/decrees of two Courts below. Consequently, the suit of the respondents shall stand dismissed. The parties are however, left to bear their own costs.