' NASIR-UL-MULK, J.---This appeal by leave of the court is directed against the judgment of the Lahore High Court dated 5-10-2000 passed in its revisional jurisdiction, setting aside the judgment and decree of the Appellate Court, 'thereby restoring those of the trial Court dated 30-4-1986. The trial Court had decreed the suit of pre-emption of the plaintiffs/respondents, Sultan Mahmood and Sadiq, against the present appellants and other defendants.
2. Land in dispute was 867 kanalas, 15 marlas situated in Tehsil Bhakkar, owned by one, Muhammad Yamin. Out of it, through a consent decree dated 15-7-1980, 250 kanals were sold to Sher Muhammad, 280 kanals to Abdul Aziz, 50 kanals to Jan Muhammad and 297 kanals 15 marlas to Rehmat Ali, Asgher Ali and Muhammad Zaman, for a total consideration of Rs, 125,000. The decree was given effect in the Revenue Record through Mutation No, 77 attested on 25-1-1981. The vendees jointly further sold 11 kanals, 4 marlas to Muhammad Shafi and Muhammad Abbas for Rs,8,000, 5 kanals, 11 marlas to Muhammad Ramzan for Rs,5,000, 51 kanals to Ghazi Khan and Ghulam Rasool for Rs,12,000, respectively through Mutations Nos. 84, 85 and 86 attested on 26-2-1981. The original vendees further sold 800 kanals to Khadim Hussain for Rs,180,000 through Mutation No, 103 attested on 9-8-1981.
3. Sultan Mahmood and Sadiq filed a suit for pre-emption on 15-7-1981 against the original vendees, Sher Muhammad and others and upon their disclosure of further alienation of the land the plaintiffs through amended plaint impleaded the subsequent vendees. The defendants/ vendees, Muhammad Shafi, Muhammad Nawaz and Khadim Hussain, filed written statement to the amended plaint, contested the suit and raised a number of objections. Abdul Aziz, one of the original vendees, filed his own written statement claiming that he never sold his share in the property. The Trial Court settled 11 issues on the pleadings of the parties. Issues Nos.8 and 9 related to the controversy on the amount of sale consideration of Rs,. 125,000 of the original sale. This controversy has some relevance to another issue. The material issues relating to the merits of the appeal are Nos.5 and 10, namely; "5. Whether the plaintiffs were estopped by their words and conduct to have brought the suit?
10, Whether the plaintiffs have got superior right of pre-emption against the defendants?
4. On 31-3-1986, the Court found Issue No,5 against the defendants and Issue No,10 in favour of the plaintiffs, whereas on Issue Nos.8 and 9 relating to the market value of the suit land, the trial Court decided to appoint local commission to determine the market value of the land. Thus, no decree' was passed on the said date. The contesting defendants (appellants herein) Muhammad. Shafi and two others, impugned the said order of the Trial Court through civil revision before the District Judge, Bhakkar, on which the Additional District Judge passed the following order on 24-4-1986:-- "Heard. It is contended that the order in question is against law and facts. The respondents Nos.3 to 8 had not taken the possession in fact and that the matter has not been properly appreciated by the Court below. I have thoroughly considered all the material on record. The revision needs deep consideration. Question of law and facts are involved in the same. Admit. Notice and record for 25- 5-1986. In the meanwhile the operation of the order in question will remain suspended."
5. The above order has been reproduced as the first argument advanced by Mr. Gulzarin Kiani, the learned counsel appearing for the appellants is based upon it. He contended that while the said order of the suspension of operation of the order dated 31-3-1986 was still in force, the Trial Court decreed the plaintiffs' suit on 30-4-1986. Such judgment and decree, it was contended, was void having been passed in violation of the order of suspension. In support of this contention, the learned counsel cited a number of judgments including two of this Court of "Abdul Rashid Khan v.
Mst. Nasim Akhtar (1974 SCMR 509) and Din Muhammad v Abdul Rehman Khan (1992 SCMR 127)".
The said plea, however, was never taken before any of the Courts, not even in the original memo of appeal before this Court but only in the additional grounds filed later. The learned counsel for the appellants argued that the decree being void challenge to it can be thrown at any stage.
Responding to these contentions, Mr. Muhammad Hanif Niazi, learned Advocate Supreme Court representing the respondents objected to the raising of question at such a belated stage and pointed out that the order of suspension of the Additional District Judge related only to the issue of determination of the market value of the suit land which was, the only pending matter before the trial Court. Augmenting his argument, the learned counsel pointed out that even that issue was settled soon thereafter when the plaintiffs through written application accepted the sale price of Rs,125,000 alleged by the defendants.
6. We agree with the arguments on behalf of the respondents. In the order dated 31-3-1986, the Trial Court had given findings on all the issues except that relating to the market value of the land in dispute for which a local commission was to be appointed. Thus, only the order of appointment of local commission was amenable to suspension as the determination on other issues was still in the nature of findings, effect to them could only have been given upon the passing of decree. Even otherwise, the civil revision which remained pending was decided by the appellate Court along with the appeal against the judgment and decree of the trial Court. The judgment of the Appellate Court also indicates that the suspension order related to the appointment of the local commission.
While referring to the civil revision, reference was made to the appointment of the local commission for determination of the market value. It seems that the appellants as well as the appellate Court proceeded on the premise that the order of suspension related to the appointment of the local commission and thus neither the appellants had raised any objection to the passing of the decree in the presence of the order of suspension, nor the Appellate Court had adverted to this issue. Additionally, this question was never raised at any stage, even in the memo of appeal before this Court. It was later taken as an additional ground by a separate application, which was allowed subject to all just and legal exceptions. This preliminary argument on behalf of the appellants not only on the ground that the decree of 30-7-1986 was not void but that it was too late in the day to take up this ground at such a belated stage.
7. Turning to the merits of the case, an argument was advanced on behalf of the appellants/defendants that they being co-sharers in the revenue estate where the suit property was situated they possessed superior right of pre-emption, sufficient to defeat the plaintiffs' right of preemption. The trial Court was not persuaded by this argument on the ground that the appellants/defendants had not purchased the property in acknowledgement of the said right, nor had they in their written statement pleaded superior right of pre-emption as against the plaintiffs.
This question became the bone of contention between the parties in the subsequent litigation.
8. In the appeal filed by the present appellants, the Additional District Judge accepted their aforementioned plea and held that since admittedly the appellants had equal right of pre- emption vis-a-vis the plaintiffs and having purchased the property within the period of limitation in which they could have filed a suit of pre-emption against the original vendees they were entitled to press their such right to defeat the preemption suit of the plaintiffs. The appellate Court further held that the doctrine of lis pendens would not be applicable to the vendees invested with the right of preemption as such right accrues upon sale of the land prior to the filing of the suit. The High Court disagreed with these findings, holding that the same is based purely on presumption as the appellants/defendants had never pleaded enforcement of their right of preemption in written statement. That such plea by defendant, Khadim Hussain, was hit by the rule of lis pendent and the subsequent sales were violative of the rule of partial pre-emption.
9. We may note at this stage that this appeal was first dismissed on merits on 26-2-2008 and the judgment was recalled in a review petition filed by the petitioners on 12-2-2010, essentially on the ground that since the judgment of the High Court was at variance with that of the Appellate Court, this Court ought to have given "logical reasons" for agreeing with the High Court and differing with the First Appellate Court.
10. The main question before all the three Courts and in the present appeal is the enforcement of the equal rights of pre-emption of the appellants so as to non-suit the plaintiffs/respondents. The learned counsel for the appellants assailed the finding of the High Court that the appellant/defendant, Khadim Hussain, could not raise such a plea on account of the principle of lis pendens as he purchased the property on 9-8-1981 during pendency of the suit filed on 15-7-1981.
The learned counsel referred to "Mool Chand v. Ganga Jal (AIR 1930 Lahore 356) and Jas Raj Juniwal v. Gokal Chand Jaini (AIR 1935 Lahore 808)" in support of his argument that the doctrine of lis pendens does not apply to a defendant claiming superior right of pre-emption as against the plaintiff. The learned counsel for the respondents did not advance any counter argument. We agree with the principle laid down in the two authorities cited on behalf of the appellants that a vendee can defeat a preemptor by transfer of the property in favour of a superior preemptor even during pendency of the preemption suit so long as such transfer takes place within the period of limitation in which a suit against the original sale could be filed. This rule is based on the principle that the right of preemption accrues to the subsequent transferee from the date of the original sale and thus such right already exists when the suit for preemption is filed. The High Court simply applied the rule of lis pendens without adverting to the above aspect of the question.
11. Further, the learned counsel made submissions that the purchase by the appellants/defendants was within the prescribed period of limitation and in this context cited a number of judgments. This issue need not detain us much as although the Additional District Judge had dealt with the same comprehensively and decided it in favour of the appellants, the High Court did not dilate upon it.
Even on facts, we do not find that the appellants' plea of right of preemption would fail on account of limitation, whether computed from the date of consent decree on 15-7-1980 or attestation of mutation dated 25-1-1981 as the defendants/appellants had made purchases on 26-2-1981 and 9- 8-1981 respectively. The period of limitation would be six years under Article 120 of the Limitation Act as the preemption right accrued the appellants from the date of the consent decree (see Khawaja v. Muhammad Din (2005 SCMR 666).
12. It is settled that a superior pre-emptor who purchases the property from the original vendee can defeat a suit for pre-emption against the same property. The plea to that effect by the appellants/defendants was not accepted by the Trial and the High Court on the ground that they have not purchased the property in recognition of such right and that enforcement of such right was not expressly pleaded in their written statements. Mr. Kiani argued that neither of the two was necessary- for the success of such plea so long as their equal or superior right of pre-emption was established through evidence. He submitted that the appellants, like the plaintiffs, are proved to be co-sharers in the revenue estate where the suit property is situated. In support of this legal proposition he cited "Muhammad Din v. Muhammad Aslam (PLD 1954 Lahore 541, Harbhagwan Das v. Partap Singh (AIR 1938 Lahore 242) and Mst. Fateh Bibi v. Ahmad Khan (PLD 1971 Lahore 171)". The learned counsel for the respondents, however, argued that in the absence of expressly pleading in the written statement the appellants are not entitled to plead the same in order to defeat the plaintiffs' suit.
13. In the case of "Harbhagwan Das"(ibid) it was held that the subsequent vendee possessing superior or equal right of pre-emption to that of the pre-emptor cannot be legally ousted and that it makes no difference whether or not the right of pre-emption in favour of the subsequent vendee takes place in exercise of the right of pre-emption. This judgment was followed by the Lahore High Court in Muhammad Din v. Muhammad Aslam and Mst. Fateh Bibi v. Ahmed Khan (ibid). These cases, however, are materially distinguishable in that, in all of them, the subsequent vendees had in their written statement expressly asserted their superior right of pre-emption as against the plaintiffs. One would agree that the instrument of transfer in favour of superior preemptor, need not mention that the transfer was being made in exercise of such right but to enforce the same as a defence in a pre-emption suit it must be expressly pleaded like any other right. The appellants/defendants had not expressly, in their written statements, pleaded superior or equal right of pre-emption. The same was not even asserted by their witnesses in their testimony. The appellants thus neither laid any foundation in the pleadings nor led any evidence for the enforcement of their right. They cannot be given the benefit of a right which they never asserted (see Amir Shah v. Ziarat Gul (1998 SCMR 593). The High Court had, thus, rightly set aside the findings of the First Appellate Court on this point.
14. The original vendees, Sher Muhammad and others, as mentioned earlier, had sold the property jointly through different transactions to the appellants. The High Court held that the integrity of the sale was thus broken and the appellants being transferees of parts of the suit property, their plea of preemptive right would be hit by the rule of partial preemption. Mr. Kiani has questioned this finding in the light of the principle laid down in "Rulia Ram v. Ram Chandar Das (AIR 1933 Lahore 774)" and in "Mst. Fateh Bibi v. Ahmed Khan"(ibid) that the rule prohibiting partial pre-emption is inapplicable to the subsequent vendees with superior right of pre-emption. The learned counsel for the respondents defending the finding of the High Court relied upon the case of "Ghulam Muhammad v. Khushi Muhammad (PLD 1973 SC 444)". This judgment, we are afraid, is not relevant to the question before us as it relates to partial pre-emption by the plaintiff/preemptor and so are the exceptions to the said rule. The case law cited on behalf of the appellants is directly applicable to the issue before us. In both the judgments cited, it has been held that where the vendee breaks up the bargain and further transfers the property to different vendees, who also claim as preemptors, the rule against partial preemption cannot be invoked against the subsequent vendees as it is the vendee who had broken up integrity of the sale.
15. Finally, the plea of estoppel was urged on behalf of the appellants and the learned counsel pointed out that one of the plaintiffs admitted that he was present at the time of the first sale. The learned counsel for the respondents successfully refuted this argument and pointed out that the first sale was effected through a consent decree and that the plaintiffs were unaware of the second sale which came to their knowledge only after filing of the suit. We have also noted that the issue (Issue No,5) was decided against the appellants/defendants even by the First Appellate Court, which had dismissed the suit of the plaintiffs. The learned counsel for the respondents had further pointed out that no cross objection was filed by the appellants against the findings of the First Appellate Court on the said issue. This contention on behalf of the appellants thus fails.
16. In view of the aforementioned discussion, whereas, we reverse the findings of the High Court on the question of partial pre-emption and lis pendens, we uphold the findings of the Trial Court and the High Court that the appellants cannot enforce their right of pre-emption in the absence of expressly pleading the same in the written statement and in the evidence. The appeal is consequently dismissed with no order as to costs.