'. IJAZ UL AHSAN, J.--- This petition is directed against the order dated 1-7-2009 passed by learned Civil Judge at Pattoki. Through the said order the application moved by the petitioner under Order VII, rule 11, C.P.C. Seeking dismissal of the suit on the ground that right of pre-emption of the respondent had abated under section 17 of the Preemption Act, 1991, was dismissed. .
2. The learned counsel for the petitioner contends that section 17 of the Punjab Pre-emption Act, 1991 provides as follows:--- "17. Abatement of right of pre-emption:--- (1) Where a pre-emptor, before the decree of a Court, alienates the property on the basis of which he claims the right of pre-emption, such right shall abate.
(2) An alienee of the property under subsection (1) shall not be entitled to the right of pre-emption.
'. The learned counsel submits that where the pre-emptor alienates a part or whole of his property on the basis of which he asserts a right of pre-emption, his right of pre-emption stands abated. .
He has based his B argument on the basis concept of Islamic Law of Pre-emption which is that in exercise of right of pre-emption, the ownership of the pre-emptor in terms of quantum should increase and not decrease.
3. Learned counsel appearing on behalf of the respondent submits that from a perusal of section 17 ibid it is abundantly clear that the intention of the legislature was that the right of pre-emption should abate only in the event the pre-emptor alienates the entire property on the basis of which he asserts a right of pre-emption. He has referred to sections 5 and 6 of the Punjab Pre-emption Act to argue that a right of pre-emption arises in case of sale of immovable property and vests in three classes mentioned in section 6 of the Pre-emption Act, 1991, namely, Shafi Shariq, Shafi Khalil and Shafi Jar. The learned counsel submits that the respondents are co-sharers/co-owners in the same Khata and squarely fall within the classification given in section 6 (ibid).
4. It is further submitted that the right/superior right of pre- emption of the respondent is yet to be determined which the trial Court would do in accordance with law after recording evidence.
5. Admittedly the respondent is a co-sharer despite having sold a portion of his holding in the joint Khata. He also shares common amenities and the suit is at its initial stage where evidence is yet to be recorded. In my opinion the order of the trial Court whereby it dismissed C. The application of the petitioner under Order VII, rule 11, C.P.C. Is unexceptionable. In this view of the matter, I do not find any illegality or material irregularity committed by the learned lower Court. This petition, therefore, fails and is hereby dismissed with no order as to costs. .