' ABDUL SATTAR GORAYA, J.---By means of this application for revision under section 115, C.P.0 the order dated 14-3-2009 passed by the learned Additional District Judge, Okara has been brought under impeachment.
2. The facts, which stemed out of the present record, are that the respondents filed a suit for pre- emption. It was averred in the plaint that Mst. Asmat Bibi was owner of the property, sufficiently described in the plaint, which she sold to Riaz Ahmed through Mutation No,491 dated 28-9-2005.
On getting knowledge of the sale transaction, a suit was filed for preemption on 23-1-2006. There was a hot contest by the petitioner and several objections in the written statement were taken. The averments contained in the plaint were emphatically denied. In the written statement, it was asserted that the vendee no more remained owner of the suit land and the same has been returned to Mst. Asmat Bibi on 25-1-2006 by means of Mutation No,500 dated 25-1-2006. The learned trial judge dismissed the suit by having held that the right of pre-emption, if any, extinguished because the property, subject matter of the suit, stood reverted to the original owner.
An appeal was taken against the said order before the learned Additional District Judge. Okara who vide his impugned order dated 14-3-2009 accepted the appeal and directed that the learned trial Judge shall hold a regular trial.
3. Learned counsel for the petitioner argued that in facts and circumstances of the case, the principle of lis pendens will not operate because the landed property has been reverted to the original owners and to the none else. It was argued that the learned Additional District Judge passed the illegal order directing remand of the case.
4. I have given conscious thought to the submissions made by learned counsel for the petitioner.
Record also perused.
5. Section 22 of the Punjab Preemption Act in terms provides that any improvement made in the status of the vendee after institution of the suit shall not affect the right of pre-emptor/suitor. In the case in hand, the land was sold out by Mst. Asmat Bibi and through a collusive deal the land was retransferred in her name. Suit for pre-emption was filed on 23-1-2006 and on getting knowledge of institution of the suit by an oral Mutation No, 500 dated 25-1-2006, the land was transferred in the name of Mst. Asmat Bibi. Any change in the title during the pendency of the suit and the perfidious attempts made by the suitor or the original owner as a result of collusive deal will not affect the preemption suit. This question came up for hearing in Chandra Kumar Maladas v. Abdul Motaleb and 4 others (PLD 1967 SC 28), wherein it was held: "It appears the auction sale in favour of respondent No,2 was set aside by compromise with the judgment-debtors after they had received notice of Miscellaneous Case No,1 filed by the respondent No,1 to pre-empt the sale. By then the date for making an application under the Bengal Public Demands Recovery Act, 1913, had expired and none of the grounds specified in sections 23 and 24 of the Act for setting aside an auction sale was made out. The order of the court setting aside the sale on compromise was thus in disguise a reconveyance of the interest acquired by the respondent No,2 at the auction sale in favour of the judgment-debtors. The High Court was right, therefore, in applying the doctrine of lis pendens to the so-called cancellation of the auction sale".
' Yet in another judgment in Mian Abdul Qayyum v. Dr. Muhammad Akram Khan (1982 SCMR 1024), it was held that when the cause of action had been accrued to the suitor to file a pre-emption suit under section 21 of the Punjab Pre-emption Act (Old Act), any change made or occurred during the pendency of the proceedings will not affect the pre-emption decree. It was further held that retransfer of the land is nothing but a device to defeat the preemption suit. Falak Sher v.
Muhammad Rashid and another (PLD 1982 Lah. 426) and Munir Hussain v. Muhammad Shafi and another (1981 CLC 1712) are also quoted with advantage. In the said case of Munir Hussain, supra, the principle of law laid down is that another transaction made during the pendency of the lis, would hit by the provisions of section 52 of the Transfer of Property Act, 1882. In the said case while confessing the judgment in the declaratory suit, the land was reverted back to the original owner and it was held in facts and circumstances of the case that the impugned exercise on the part of the vendee was nothing but a wilful-breach of section 52 ibid. The relevant portion of the judgment reads: dining the pendency of the suit but it is also attracted to a case in which the property is otherwise dealt with so as to adversely affect the rights of any party to the suit. By confessing judgment in the declaratory suit brought by some of the appellants, respondent No,2 (vendee) had agreed to part with the land in dispute which had been purchased by him earlier. In this way, he had defeated the preemptive rights sought to be enforced by the first respondent by means of the suit brought by him. All this would clearly show that the respondent No,2 had dealt with the disputed property as contemplated by section 52 of the Transfer of Property Act in such manner as to adversely affect the rights of the first respondent qua the preemption suit brought by latter against the former. The declaratory decree which was the net result of the aforesaid conduct of respondent No,2 was, therefore, hit by the principle of lis pendens. In taking this view I am fortified by Chandra Kumar Maladas v. Abdul Motaleb and 4 others (1) Gulanb Khan v. Muhammad Sarwar Khan and another (2) and Harnam Singh v. Jiwan
(3) The finding of the learned District Judge is, therefore, unexceptionable."
"I am unable to agree with the learned counsel for the appellants. Section 52 of the Transfer of Property Act is not only applicable to a case in which the property involved in dispute is transferred.
6. The learned Additional District Judge in the impugned judgment has correctly scanned the issue involved in this case and the real controversy has pointedly been brought into focus. It was rightly concluded that any change made during the pendency of the suit and retransfer is nothing but a device on the part of the vendee to defeat the pre-emption suit. The impugned order dated 14-3- 2009 passed by the learned Additional District Judge is based on sound judicial considerations. No interference is called for. The petition having no merit is dismissed-in-limine.