1. SARDAR MUHAMMAD NAWAZ KHAN, C.J.--- Through this appeal the judgment and decree passed by learned District Judge Bagh dated 31-8-004 is under challenge.
2. The relevant facts necessary for decision of this appeal are that Muhammad Sadiq, respondent herein, brought a suit for possession on the basis of pre-emption against Muhammad Mukhtar Khan and others, appellants herein, in the Court of Sub Judge Bagh on 12-6-1997.The learned Judge after due process of law disallowed the suit, consequently, an appeal was taken to the learned District Judge who, through the judgment and decree impugned before this Court, reversed the findings of the Trial Court and decreed the suit of pre-emptor, hence this appeal The learned counsel for the appellant submitted that the vend Muhammad Mansha Khan was on equal footing with pre-emptor whereas the other two vendees Muhammad Mukhtar Khan and Muhammad Akram Khan by name had improved their status through the sale-deed, dated 24-6-1997 executed in their favour. Therefore, the pre-emption - suit was rightly disallowed by the learned Trial Judge, which needed no interference by the first Appellate Court. According to the learned counsel, the first appellate Court fell in error while allowing the pre-emption suit because neither "Rule of Sinker" was attracted in this case nor the amendment in section 20-A of Prior Purchase Act could be made effective retrospectively. The learned counsel, in alternative argued that even if the amendment in section 20 of Prior Purchase Act had retrospective effect on pending cases wherein the status had been improved prior to this amendment, the suit to the extent of Muhammad Mansha Khan vendee was liable to be disallowed, as in the estimation of the learned counsel the doctrine of Sinker was not applicable.
3. While controverting the arguments on the side of appellants it was argued by the learned counsel representing the respondent that the amendment in section 20 of Prior Purchase Act and Rule of Sinker both applied to the case in hand, therefore, the learned District Judge while allowing the pre-emption suit acted in accordance with law and his findings deserve no interference by this Court. The learned counsel during his arguments relied upon the law like 2003 CLC 1073 and PLD 1971 Lahore 171 and contended that the vendee Muhammad Mansha Khan by joining other two strangers for the purpose of pre-emption with him could not access claim of pre-emptor even in respect of his own share of purchase. He during his arguments also relied upon the case titled "Baqa Muhammad Khan v. Kh. Zafar Iqbal" decided on 26-7-2007 by the division bench of this Court and submitted that in view of the judgment of this Court the amendment in section 20 applied to the case as in which the status has been improved during pendency of pre-emption suit. According to the learned counsel, the other two vendees except Muhammad Mansha Khan improved their status during pendency of preemption suit and this transfer was made in their favour by Muhammad Mansha Khan, therefore, in view of doctrine of Sinker and applicability of amendment in section 20, the pre-emption suit has rightly been decreed in favour of respondents.
4. Before deciding the controversy we would like to have brief survey of the case law cited at Bar.
5. In Muhammad Hussain's case 2003 CLC 1073 it was held that the defendants/vendees having joint strangers with them, they were hit by principle of sinker and could not claim any competitive right of pre-emption as against plaintiff especially when defendants could not prove that the sale was divisible.
6. Similarly, in Mst. Fateh Bibi's case PLD 1971 Lah. 171 it has been held that if the purchaser having equal right of pre-emption associate with himself in the purchase the person with rights inferior to those of the pre-emptor he is not entitled to resist the claim of such pre-emptor even in respect of his own share of the purchase. The purchaser in such a case would be deemed to have sunk down to the level of his associate and therefore, would not be entitled to resist pre-emption even qua his own share.
7. In Baqa Muhammad Khan's case the division bench of this Court has observed as under:--- "In view of above stated position we are of the considered view that neither section 56 of the interim Constitution Act, 1974 nor Section 6 of the General Clauses Act, is attracted in the present case. The legislature has enacted this provision to protect the right of pre-emptor which is a statutory right and the Courts are duty bound to give full effect to the wisdom of the legislature especially to choose laws which have been enacted for carrying out supremacy of Sharia. We are of the view that even vested right can be taken away by amending the law, retrospectively. A reference can be made to PLD 1978 SC (AJ&K)
42. It may be observed that appellant herein cannot claim even any vested right in view of clauses "c" and "e" of the General Clauses Act because no right was conferred on him by any statute or he has acquired the same before promulgation of the Ordinance XXI of 1998. Section 20-A was firstly added through Ordinance XXI of 1998 on July 15, 1998.
8. The plaintiff obtained decree on 18-4-2001, therefore, Section 20-A was already in the field when the defendant/vendee improved his status. Only those rights of vendee could be protected which have become his property in shape of decree or otherwise before promulgation of Ordinance XXI of 1998", It is clear from the record that Muhammad Mukhtar Khan and Muhammad Akram Khan purchased a piece of land from Muhammad Mansha Khan appellant during pendency of pre-emption suit just to become co-sharer in the property wherein respondent Muhammad Sadiq and Muhammad Mansha Khan appellant were sharer at the time of sale deed; but Muhammad Mukhtar Khan and Muhammad Akram Khan were not so. Meaning by this that they were strangers, for the purpose of preemption they improved their status during pendency of pre-emption suit, therefore, in view of the judgment of this Court in case titled "Baqa Muhammad Khan v. Kh. Zaffar Iqbal" decided on 26- 7-2007 they are hit by the amendment in section 20 of Prior Purchase Act, thus, this attempt of transfer in their favour could not help them for the purpose of preemption. They are on the same level with the pre-emptor at the time of sale deed and no more. Coming to the doctrine of sinker it may be observed that Muhammad Mansha Khan appellant is found to have associated Muhammad Akram Khan and Muhammad Mukhtar Khan being strangers for the purpose of pre- emption twice. Once at the time of sale deed and for the second time when he transferred a piece of land in their favour during pendency of suit, thus, he is found to have joined deliberately the other strangers with him therefor, he is deemed to have sunk down to the level of his associate and could not be entitled to resist pre-emption even qua his own share. We respectfully subscribe to the case law cited at bar with respect to doctrine of sinker.
9. The result therefore, is that finding no force in this appeal, it is hereby dismissed leaving the parties to bear their own costs. Respondent Muhammad Sadiq is allowed to deposit the decretal amount in the trial Court within two months' time from the date of this order. The office is directed to transmit immediately the file of the Trial Court along with the copy of this order. The learned Trial Court after receiving this order shall issue notice to the appellants/pre-emptors for depositing the decretal amount within time fixed by this Court, failing which the suit shall be dismissed.