Muhammad Jamil, Petitioner No, 2, purchased the suit property through sale Mutation No, 4564, dated 31.1.2003. The plaintiff/ respondent learnt of the transaction on 24.4.2003 at 4. p.m., through his grand son, he immediately made Talb-i-Muwathibat, on 25.4.2003, he went to the office of his counsel and issued notice dated 304.2003, making Talb-i-Ishhad and thereafter filed a suit on 5.5.2003. It is an admitted position on record that Petitioner No, 2 had sold the suit property to Petitioner No, 1 on 28.4.2003, therefore, while contesting the suit Petitioner No, 2 filed an application under Order VII, Rule 11 C.P.C. praying for rejection of the plaint, pleading that the suit property was sold earlier to making Talb-i-Ishhad, thus, there was no cause of action in favour of the plaintiff.
After contest the trial Court allowed the application and rejected the plaint on 19.2.2004. Aggrieved thereof the plaintiff/respondent filed appeal before the lower Appellate Court, which, after contest, was allowed and the order and decree dated 19.2.2004, passed by the trial Court was set aside.
2. An application under Order 1, Rule 10 C.P.C. was made by one Amanat Ali claiming to be rival pre- emptor, therefore, a necessary, party to the dispute, as such, he be impleaded in the present petition. The petitioners or the respondent did not object to his impleadment, therefore, his application was allowed and he was impleaded as Respondent No, 2.
3. Learned counsel for the petitioner contended that Talb-iIshhad was made upon Muhammad Jamil (Petitioner No, 2) on 30.4.2003, whereas he had sold the property to Abrar Hussain, Petitioner No, 1 on 28.4.2003, as talbs have to be made upon the owner of the property as contained in Section 13 of the Punjab Pre-emption Act, 1991, therefore, no talb in law was made, as such, the plaint was rightly rejected. To augment his arguments he submitted that preemption is a feeble, predatory right and has thus, to be followed as mandated in law and every provision of Section 13 of the Punjab Pre-emption Act has to be meticulously adhered to, and in case of default the right is deemed to have been waived and provisions of Section 15 of the Punjab Pre-emption Act, 1991, came into play. To fortify his contentions he relied upon Haji Muhammad Saleem vs. Khuda Bakhsh (P.L.D. 2003 S.C. 315), Akbar Ali Khan and others vs. Mukainil Shah and others (2005 SCM R 431), Umar Khan through Legal Heirs vs. Ali Akbar through Legal Heirs and others (2004 C.L.C. 1671) and Muhammad Ramzan vs. Lal Khan (1995 S.C.M.R. 1510).
4. Learned counsel for Respondent No, 1 vigorously defended the impugned judgment and submitted that subsequent transfer in favour of vendee cannot effect the pre-emption right of the first pre-emptor, therefore, talbs were performed in accordance with law, as such rejection of plaint was unwarranted and the order was rightly reversed by the lower Appellate Court.
5. Learned counsel for Respondent No, 2 has also defended the impugned judgment and submitted that right of pre-emption is conferred upon individuals under Sections 5 and 6 of the Punjab Preemption Act, 1991, these are substentative provisions of law and have to be read in conjunction with Section 13 of the Punjab Pre-emption Act, which means that the plea adopted by the petitioners to frustrate the right of pre-emption was collusive, disguised and mala fide, therefore, it is against the spirit of law, further the transaction is sham, collusive and fraudulent, therefore, requires a detailed trial and the proceedings cannot be permitted to be short circuited.
To fortify his contentions he relied on the following precedents:-
(i) Inayat Ullah Khan vs. Muqqarrab Khan (P.L.D. 1983 Peshawar 129),
(ii) Mst. Mah Rauf Sultan vs. Abdul Yamin (1968 S.C.M.R. 874),
(iii) Taj Din vs. Jumma etc. (P.L.D. 1978 Peshawar 88),
(iv) Mumtaz Begum vs. Mukhtar Begum (P.L.D. 1983 S.C. 76),
(v) Muhammad Khan vs. Sadiq etc. (P.L.D. 1983 Lahore 929),
(vi) Ghulam Tayyab vs. Shahroo Khan, (P.L.D. 1962 (W.P. BJ-1),
(vii) Jaffaran Bibi vs. Saleh Muhammad (P.L.J. 1975 Lah. 268),
(viii) Muhammad Khan vs. Khan Muhammad (P.L.J. 1973 Lah. 522), (ix)Mustaqim Khan vs. Abdullah Khan (P.L.D. 1951 Pesh. 1).
6. I have heard the learned counsel for the parties and perused the impugned judgment as well as the order of the trial Court. It stands established from record that Petitioner No, 2 sold the suit property on 28.4.2003 to Petitioner No, 1, talbs as ordained by law were made upon Petitioner No, 2 and not on Petitioner No,
1. Therefore, the sole point for adjudication and determination is whether the talbs were made in accordance with the spirit, mandate and command of Section 13 of the Punjab Pre-emption Act, 1991, or not. Section 13 of the Punjab Pre-emption Act, 1991, states in clear and un-ambiguous terms that rights of pre-emption of a person shall be extinguished unless a person aggrieved makes demand in the following order:--
(i) Talb-i-Muwathibat;
(ii) Talb-i-Ishhad; and (iii). Talb-i-Khussmat.
Thereafter the procedure and manner in which these demands are to be made has been clearly enunciated. The question now arises upon whom demands are to be made. The answer is relatively simple, because transfer of ownership triggers the pre-emptor's right, he considers himself aggrieved and thereafter has to establish a superior right to retrieve this property thus the demand is to be made upon a person, who is owner of the property. Section 2-(c) of the Punjab Pre-emption Act, 1991, reads: "Right of pre-emption" means a right to acquire by purchase an immovable property in preference to other person by reason of such right.
Section 2(d) reads: "Sale" means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of `hibabil-iwaz' or`hiba ba shart-ul-iwaz'.
If both provisions are read together they fully support this interpretation as sale in favour of the new owner is to be challenged, therefore, demand has to be made upon him.
7. Sections 5 and 6 of the Punjab Pre-emption Act, 1991, in fact, support this view point. Section 5 ibid clearly stipulates that the right of pre-emption accrues on the sale of immovable property, while Section 6 states the person in whom the right of pre-emption vests, therefore, if both these sections are read together, they advert to sale and qualifications of a person, who can exercise right of pre- emption.
8. The Transfer of Property Act, 1882 (Section 54) defines sale: "Sale is a transfer of ownership exchange for a price paid or promised or part paid and part promised." While Section 55 of Transfer of Property Act enumerates the rights and liabilities of buyer and sellers. Therefore, the contract of sale visualizes only two persons, vis. buyer and seller. If Section 13 and Sections 5 & 6 of the Punjab Pre-emption Act, and Section 54 and 55 of the Transfer of Property Act are read together, it is clear that the right of pre-emption in accordance with Section 13 of the Punjab Pre-emption Act, is to be exercised upon the buyer of property alone and on one else, because with the execution of the sale-deed, the seller completely divests himself of all rights in the property and they are transferred to the buyer, who steps into the formers shoes. This transfer triggers the pre-emption suit, because the plaintiff considers himself aggrieved and seeks to retrieve back the property from the buyer.
Who now is the owner of property, as such talbs are required to be made upon him. As talbs were not made upon the owner of the land, therefore they were not made in accordance with the provisions of Section 13 of the Punjab Pre-emption Act, as such, the plaint was rightly rejected by the trial Court holding that they were made upon an improper person. The precedents referred to by the learned counsel for Respondent No, 2 are distinguishable on facts. Inayatullah Khan us.
Mukarab Khan and another (P.L.D. 1983 Pesh. 12) deals with acquiring a superior pre-emptive right and thus is not applicable to the present proposition. Mst. Mahruf Sultan us. Abdul Yamin and another (1968 SCM R 874) is also inapplicable and distinguishable on facts as the suit property was gifted during the pendency of the suit, whereas in the present matter the property was sold earlier to the filing of the suit. Likewise Taj Din us. Jumma and 6 others (P.L.D. 1978 S.C. (AJ&K) 131) also deals with superior right of pre-emption. The other precedents referred to are inapplicable, to the facts of the present proposition. Therefore, this petition is allowed, the impugned judgment and decree dated 7.6.2006 is set aside, the order and decree of the trial Court dated 19.2.2004, is restored. No order as to costs.