Nasir-ul-Mulk, J.--An agreement to sell was executed by one, Muhammad Shafi, on 17.06.1970 in favour of Muhammad Younas and others for sale of land Measuring 28 Kanals and 18 Marlas. The vendees filed suit for specific performance against the vendor on 28.03.1972. During pendency of the suit, the vendor passed away and his legal heirs were impleaded as defendants. Out of them, the widow, Khurshid Begum, sold her share of 7 'Canals and 4-1/2 Marlas to the plaintiffs, where- after, the plaintiffs filed an amended plaint excluding the purchased area. Muhammad Ayub and Muhammad Yaqoob, co-sharers in the property pre-empted the alienation of the land by Mst.
Khurshid Begum. The suit was decreed on 28.05.1976, which attained finality as the same was not challenged. Meanwhile, the said Muhammad Ayub and Muhammad Yaqoob, had also purchased from the legal heirs of Muhammad Shafi, their shares on 07.06.1972. They were, thus, impleaded as Defendant Nos, 11 and 12 in the suit. The trial Court held the agreement to sell by Muhammad Shafi in favour of the plaintiffs valid and proved and accordingly, decreed the suit for specific performance in favour of the plaintiffs. The crucial issues were Nos, 5, 6 & 9-A. The first two were for determination as to whether the said defendants were bona fide purchasers for consideration and whether the subsequent sale was made during the pendency of the suit. issue No, 9-A was whether Defendant Nos, 11 & 12 possessed superior right of preemption against the plaintiffs and if so, decree of specific performance could still to be granted to the plaintiffs. The Court found that the said defendants had failed to prove that they had no notice of prior sale in favour of the plaintiffs and thus, were not entitled to protection under Section 27 Clause (b) of the Specific Relief Act.
Further, that although the said defendants' right of pre-emption stood established, decree for specific performance could still be granted in the light of the judgment of the Lahore High Court in "Hayat Muhammad v Muhammad Shaft (PLD 1977 Lahore 1229)". The Court did not follow the contrary view expressed in "Nowab Meah v Syed Ezaz-ud-Din Ahmed (PLD 1962 Dacca 655)" as it felt pound by the authority of the Lahore High Court. The judgment and decree of the trial Court dated 31.01.1981 were upheld in appeal by the Additional District Judge on 27.06.1985 as well as by the High Court in its revisional jurisdiction on 12.04.2001. Leave to appeal was granted to the vendors and the legal heirs of Muhammad Ayub and Muhammad Yaqoob, the subsequent vendees, on 02.09.2004 in the following terms:-- "Learned counsel for petitioner, inter-alia, contended that learned High Court has confirmed the findings of the trial Court ignoring the fact that Petitioner Nos, 10 and 11 being the subsequent purchaser of the property from the legal heirs of Muhammad Shafi have also acquired a right of pre-emption which they have already proved by getting a decree against Khurshid Begum (late) in respect of the property which was sold by her during the pendency of the suits and the respondents, merely on the basis of an agreement of sale executed with Muhammad Shafi by them, were not entitled for discretionary relief for grant of decree for specific performance in accordance with Section 22 of the Specific Relief Act, 1877 as well as the principle high lighted in the case of Nowab Meah Chowdhury v. Syed Ezaz-ud-Din Ahmed and others (PLD 1962 Dacca 655).
2. Learned counsel for plaintiff when confronted with above noted proposition of law prayed for short adjournment till tomorrow i,e, 2nd September 2004 to further prepare the brief. Order accordingly."
3. Learned counsel appearing for the caveat or contended that instant petition is not competent because the property Measuring 7 Kanals 4-1/2 Marlas was purchased by respondents from Khurshid Begum through registered sale-deed dated 13.6.1973 and this sale was pre-empted by one Muhammad Hussain.
4. A perusal of the record indicates that no such suit was filed by Muhammad Hussain.
5. Be that as it may, as the learned counsel for the petitioners has raised a substantial question of law, therefore, leave to appeal is granted inter-alia to examine his above contention."
2. The learned counsel for the appellants made an attempt to question the findings of the Courts on the very execution of the agreement to sell by Muhammad Shafi. This question cannot be allowed to be reopened at this stage in view of the concurrent findings of the three Courts. In any event, the execution of the deed has been admitted by the defendants' own witness, Bashir Ahmed (D.W.5), marginal witness of the deed. Leave was granted to the appellants essentially to examine the legal question, whether the right of the vendees to enforce the agreement to sell through specific performance can be defeated by the subsequent vendees by their superior right of pre- emption over the subject matter of the suit.
3. On the legal plane, the High Court rejected the contention on behalf of the appellants based on their right of pre-emption as subsequent vendees on two grounds. Firstly, that the principle laid down in Nowab Meah's case (ibid) could not be applied to the facts of the present case as the petitioners before it were legal heirs of the vendors and not the subsequent purchasers.
Responding to this finding, the learned counsel for the appellants pointed out that the High Court had overlooked that the subsequent purchasers were also petitioners before it along with legal heirs of the original vendors. Secondly, the High Court did not follow the principle laid down in Nowab Meah's case as a contrary view had been expressed in Hayat Muhammad v Muhammad Shafi (ibid). Regarding this finding, the learned counsel for the appellants submitted that the Hon'ble Judge authoring the impugned judgment had subsequently in 'Muhammad Yousaf v Hadayat Ullah (2007 CLC 1)" followed the principle laid down in Nowab Meah's case. In further support of his argument that a suit for specific performance cannot be decreed against another vendee of the same property possessing right of pre-emption over the property, the learned counsel cited "Hahibar Rahaman v Ali Azahar (A.I.R. 1926 Calcutta 1237) and (Saheb) Dayal Singh v Mahabir Singh (A.I.R. 1930 Allahabad 166)".
4. Responding to the above, the learned counsel representing the respondents/plaintiffs argued that the subsequent vendees were not bona fide purchasers as they had notice of the prior agreement to sell in favour of the plaintiffs. On the legal question formulated in the leave granting order, he simply relied upon the case of Hayat Muhammad u Muhammad Shafi (ibid), which was also mentioned by the Trial and the High Court to refute the contention based on the principle laid down in Nowab Meah's case.
5. In Nowab Meah's case, the High Court of East Pakistan held that the Court would not exercise its discretionary powers under Section 22 of the Specific Relief Act to decree specific performance of an agreement to sell against a subsequent purchaser of the land having right of pre-emption over the sale transaction. In holding so, the High Court referred to a number of judgments from the Indian jurisdiction of the pre-independence period. The rationale for the said principle is that the subsequent vendee having right of pre-emption would be able to preempt the sale by filing a suit. Thus, to avoid multiplicity of suits it would not be equitable to decree specific performance of an agreement to sell where the transaction is liable to be successfully challenged by a subsequent vendee. No case law has been brought to our notice expressing a contrary view.
6. Reliance by the High Court as well as the other Courts on Hayat Muhammad u Muhammad Shafi
(ibid) was misplaced. The proposition in Hayat Muhammad's case was totally of different nature.
Hayat Muhammad was granted a decree for specific perform vice of agreement to sell of a certain land against the vendor, Ghulam Muhammad and the subsequent vendee, Muhammad Hussain, to whom the same land was sold on 18.06.1952 Thereafter the Court on 12.10.1961 executed sale- deed in favour of Hayat Muhammad on behalf of both the defendants. Muhammad Shafi son of Ghulam Muhammad filed a suit on 23.10.1962 claiming superior right of pre-emption as against Hayat Muhammad, for being the son and expected heir of Ghulam Muhammad. His suit was decreed. The decree was set aside by the Lahore High Court on the ground that for the purpose of preemption, the sale in favour of Hayat Muhammad was by Muhammad Hussain and not Ghulam Muhammad. That being so, Muhammad Shafi's right of pre-emption was only against the first sale of 1952 in favour of Muhammad Hussain which he had lost by expiry of the period of limitation. It was, thus, not a simple case of enforcement of preemption right by a subsequent vendee against the first vendee who was seeking specific performance of sale in his favour. The Court was called upon to determine as to which of the two sales was relevant for the purpose of enforcement of right of pre-emption by son of the original owner of the land. That has never been an issue in the present case and thus, the principle in Hayat Muhammad's case has no relevance. Even the learned Judge in the High Court, who authored the impugned judgment, has subsequently in Muhammad Yousaf's case followed the principle laid down in Nowab Meah s case.
7. An argument was also canvassed by the learned counsel for the respondents that the rule in Nowab Meah's case is no longer relevant as now under the new dispensation the pre-emptor has to prove the making of Talb-e-Muwasibat and Talb-e-Ishhad before the filing of suit. That failure to prove the Talabs would defeat the suit. In response, the learned counsel for the appellants submitted that this argument was raised before the Lahore High Court in case of Muhammad Yousaf (ibid) but was rejected on the ground that the case of Nowab Meah also involved the right of pre-emption under the traditional Islamic Law that required the making of Talbs. That the statutory requirement of making of Talbs for making a valid claim of pre-emption has not brought about a challenge in the Rule about the exercise of discretion whether to grant the relief of specific performance. We would not like to dilate upon this aspect as the agreement to sell of which specific performance is sought was entered in the year 1972 and, later, in the same year the property was sold to the appellants who, according to the law then prevailing, were not required to make Talbs to enforce their right of pre-emption.
8. In most of the cases cited in favour of the principle laid down in Nowab Meah's case, the Court had found on the face of the record that the subsequent vendee possessed superior right of pre- emption over the transaction without conclusively determining the question. The appellants' right of pre-emption in the present case clearly stands established. They had already proved it by successfully pre-empting the alienation by Mst. Khurshid Begum, one of the legal heirs of Muhammad Shafi, of her share in the property in favour of the first vendee.
9. For the foregoing reasons, we hold that in the presence of the appellants' right of pre-emption in case of alienation of the suit property, the plaintiffs/respondents were not entitled to the grant of decree for specific performance of agreement to sell the property. The appeal is, therefore, allowed. The impugned judgments and decrees are set aside and the suit filed by the plaintiffs/respondents is dismissed. No order as to cost.