' IFTIKHAR MUHAMMAD CHAUDHRY, C J.---One Iqbal and others sold a piece of land to Mushtaq and Bashir through a registered sale deed dated 25-3-1979. One Ghulam Muhammad, a predecessor- ininterest of the present appellants, pre-empted the said sale through a suit filed by him on 25-3- 1980. The said Ghulam Muhammad died during the pendency of this suit whereupon his three sons and three daughters stepped in and continued the said suit which was decreed by a learned Civil Judge at Sadiqabad through a judgment dated 22-5-1985. The appeal filed by the vendees was dismissed by a learned Additional District Judge at Rahim Yar Khan through his judgment dated 3- 2-1988 which brought the said vendees to the Bahawalpur Bench of the Lahore High Court with a Regular Second Appeal impugning the said judgments of the trial and the appellate Court.
2. Through its judgment dated 3-11-2001, the High Court accepted the said appeal; set aside the impugned judgments of the two lower courts and dismissed the suit of the pre-emptor essentially on the ground that the right of pre-emption was a personal right which did not survive the death of the pre-emptor, and if the pre-emptor had died before a suit was decreed then the suit could not be continued by the heirs of such a pre-emptor unless, of course, the said heirs or anyone of them was/were possessed of a right of pre-emption independent of such a right being claimed as an heir of a person who had such a right. Reliance in this connection had, inter alia, been placed on a judgment of this Court delivered in the case of Malik Ghulam Nabi and others v. Member Board of Revenue and others (PLD 1990 SC 1043).
3. The said heirs of Ghulam Muhammad pre-emptor are now before us through a direct appeal under Article 185(2)(d) of the Constitution.
4. The parties have been heard and the record has also been perused.
5. The learned Advocate Supreme Court for the appellants i,e, the heirs of Ghulam Muhammad pre-emptor vehemently argued that the above-mentioned judgment of this Court in Malik Ghulam Nabi's case was not applicable to the present case as the said case emanated from the Province of Balochistan where un-like in the Province of Punjab, the matters of pre-emption were not regulated by any codified law and were governed by the general principles of Muslim Law if the parties were Muslim whereas the present case pertained to the Province of Punjab where the pre- emption matters were administered and settled through a codified law. The learned counsel then drew our attention to a judgment delivered by this Court in the case Khuda Yar v. Ghulam Muhammad (1999 SCM R 1808) wherein it had been held that the right of preemption was a heritable right and that the heirs of a deceased pre-emptor thus had a right to continue the right of pre-emption asserted by their predecessor-in-interest and to continue with the said right claiming possession of the suit land. But the attention of the learned counsel was also drawn to another judgment of this Court delivered in the case of Muhammad Ishaq v. Muhammad Sadiq (2007 SCM R 1478) wherein also it had been held that the heirs of a deceased pre-emptor could not succeed on the strength of any superior right of pre-emption vesting in their predecessor-in- interest which such heirs did not possess at the time of the sale which had been pre-empted. The relevant portion of the said judgment is as under: "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 inherits 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 preemption 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 to all relevant times, otherwise his suit must fail." In doing so reference was made to section 4 of the Punjab Pre-emption Act pars material 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 pre-emption 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 Younas v. Khushal Civil Revision No,115 of 1978, held that `the pre- emptor must possess the right on a date of sale."
6. As has been noticed above, the learned counsel for the appellants had questioned the impugned judgment of the High Court submitting that the facts of Malik Ghulam Nabi's case ibid were distinguishable from the facts and circumstances of the present case on account of the relevant law in the Province of Balochistan being uncodified and further that the judgment of this Court in Khuda Yar's case ibid supported his stance. We asked the learned counsel to point out any provision or principle of law which had prevailed with the three Hon'ble Members Bench of this Court deciding the said Khuda Yar's case on the strength of which it had been declared that in the Province of Punjab the right to sue in a pre-emption matter, survived the death of the preemptor.
He could not offer any satisfactory answer to the said query and submitted only that the law of pre-emption in the Province of Punjab was a codified law. We then asked him to point out any provision in the law of pre-emption as existing in the Province of Punjab i,e, the Punjab Preemption Act of 1913 which was the relevant law at the time when the sale in question had been pre-empted by Ghulam Muhammad and which would have declared that the right to claim possession through preemption would survive the pre-emptor but he could not do the same and rightly so because no provision existed in the said Act of 1913 which had so provided. This being so, the matter in issue i,e, the right of preemption being heritable, the situation in the Province of Punjab was at par with the one obtaining in Balochistan because to the said extent even in the Province of Punjab no codified law existed. As has been noticed above, a five Member Bench of this Court in Ghulam Nabi's case; another five Member Bench of this Court in the case of Muhammad Younas v. Khushal (1989 SCM R 69) and the two Members Bench of this Court in the case of Muhammad Ishaq, had declared that the right of preemption was not a heritable right and got extinguished with the death of the pre- emptor. As has been observed above, to the said extent in issue, the case of pre-emption suits in the Province of Punjab was at par with the cases arising out of the Province of Balochistan.
Consequently, we hold that no exception could be taken to the impugned judgment of the Lahore High Court.
7. This appeals is, therefore, dismissed, leaving the parties to bear their own costs.