' GULZAR AHMED, J.---By this civil petition for leave to appeal, the petitioners have challenged the judgment dated 16-6-2008 of the learned Judy in Chamber of the Lahore High Court, Lahore by which their civil revision application was dismissed.
2. The matter has a cheered history and brief statement of it needs to be narrated. The predecessors of the petitioner, namely, Muhammad Yousaf had filed a suit for pre-emption against the respondents. The suit was decreed ex parte on 25-9-1981, which decree was set aside in appeal and the matter was remanded to the trial Court for re-trial. The trial Court dismissed the suit vide judgment and decree dated 7-1-1989 on the ground that the petitioners have failed to mention tables in accordance with fresh law. This judgment and decree was upheld by the learned Additional District Judge, Jhang. In revision the High Court set aside the decree and remanded the matter to the trial Court for deciding afresh in accordance with the Punjab Pre-emption Act, 1913 and not in accordance with the Act of 1991. Accordingly the trial Court through its judgment and decree dated 18-10-2000 decreed the suit. In appeal such judgment and decree of the trial Court was set aside and the petitioner's suit was dismissed. By the impugned judgment the judgment of the trial Court has been maintained.
3. The only argument raised by the learned counsel for the petitioners in support of the petition is that the appellate Court as well as the revisional Court have went wrong in appreciating the law that preemptor having died during the pendency of the suit, his right of pre emption was heritable by his legal heirs and they could have maintained and continued the suit. In support of his submission, the learned counsel for the petitioners has heavily relied upon the case of Allah Dad and another v. Hukam Dad and others (PLD 1960 (W.P.) Lahore 900) and the case of Khuda Yar through Legal Heirs and 10 others v. Ghulam Muhammad and another (1999 SCM R 1808).
4. On the other hand the counsel for the respondents has vehemently opposed the petition and has contended that the demise of the original pre-emptor during the pendency of the pre- emption suit extinguishes the right of pre-emption and the same is not inheritable by the legal heirs and in this respect has relied upon the case of Nazir Hussain and others v. Mushtaq Ahmad (deceased) through legal heirs and others (PLD 2010 SC 1048) and the case of Muhammad Ishaq v.
Muhammad Sadiq (2007 SCM R 1478).
5. We may note that during the arguments further case-law on the subject was examined that is the case of Azizur Rehman and others v. Muhammad Nawaz (PLD 1988 Supreme Court 384), Muhammad Younas v. Khushal (1989 SCM R 69) and Malik Ghulam Nabi and others v. Member III, Board of Revenue and 5 others (PLD 1990 Supreme Court 1043).
6. We have considered the submissions of the learned counsel for the parties and have gone through the record as well as the law referred to above. It is admitted at all ends that the suit in hand having been filed on 5-12-1978, was squarely covered by the provisions of the Punjab Preemption Act, 1913' and that such Act did not contain any specific provision providing for the succession of the right of pre-emption during the pendency of the pre-emption suit by the legal heirs of deceased preemptor and that a provision to this effect was for the first time introduced by virtue of Section 16 in'the Punjab Pre-emption Act, 1991 and such provision in the present case has no application. In view of such statutory law on the subject, we necessarily have to answer the question by referring to the cases relied by the parties and which have been referred to above.
7. In the first noted case of Allah Dad, which is the Full Bench Judgment of the erstwhile High Court of West Pakistan, Lahore Bench, the facts were that Allah Dad had purchased occupancy right in the suit property from Allah Ditta, which was pre-empted by Nek Muhammad by bringing a suit for pre-emption on the basis of his relationship with the vendor and also on the ground that he was a co-sharer in joint Khata. During the pendency of the suit in the trial Court pre-emptor Nek Muhammad died and his legal representatives were brought on record. The suit was dismissed by the trial Court on the ground that pre-emptor had failed to establish the right of pre-emption. Such decision of the trial Court was reversed in appeal and the suit was decreed. In the cited case, which arises from Regular Second Appeal, the question regarding the legal heirs being competent to maintain and continue the suit in the face of the fact that original pre-emptor having died during the pendency of the pre-emption suit, was taken up. Initially the Regular Second Appeal came up before Mr. Justice C.M. Sharif (as his lordship then was), who noted that the right of pre-emption is heritable like any other property and accrues to the heirs of the deceased pre-emptor being question of importance desired that it should be authoritatively answered and thus referred the case to the Chief Justice for reference to a larger Bench. It appears that the matter was referred to the Division Bench of Their lordships B.Z. Kaikaus and Qadeeruddin Ahmad, His lordship B.Z. Kaikaus, J., came to the conclusion that right of pre-emption devolves on the heirs subject to the condition that the heirs too have a preferential right as against the vendee either on account of his ownership of land, which may have devolved upon him or on account of his being nearer heir of the vendor than the vendee and thus dismissed the appeal. His lordship Qadeeruddin Ahmad, J, however took a different view and came to the conclusion that in the area, which was formerly the Punjab, the right of pre-emption is neither heritable nor does it survive the death of a pre-emptor and the suit abates on the death of the pre-emptor, if the death takes place during the pendency of the suit, if an heir of a deceased pre-emptor is qualified to pre-empt he can exercise the right in virtue of his qualification subject to all the limitation of his own right. In view of disagreement and in the meanwhile one L.P.A. No,27 of 1958, having also come before the Court, a Full Bench was constituted in which his lordship M.R. Kayani, C.J, constituted the Bench of himself and B.Z. Kaikaus and Qadeeruddin Ahmad, JJ. The matter was decided by majority of two to one and it was found that the right of preemption was heritable.
8. The second case in line is that of Azizur Rehman (supra)'. The facts in this case were that one Muhammad sold his share of land to the appellants/vendees by registered sale deed dated 25-4- 1975. The respondent's father a co-sharer and a contiguous owner of the land died on 18-2-1976 and on his demise his son, the respondent claiming to be a co-sharer and contiguous owner by, inheritance pre-empted the sale on 22-4-1976. The suit was decreed. In appeal the suit was dismissed. In revision before the High Court, the decree of the trial Court was restored and thus the matter came before the Humble three Member Bench of this Court. The observation of the Court with regard to the controversy is as follows:-- "Sections 11 and 12 of the N.-W.F.P. Pre-emption Act declare the right of pre-emption to vest in certain persons at the time of sale. Therefore, a pre-emptor who had no right on the date of sale cannot improve his right after the sale by inheritance as the cause of action had already come into existence and the subsequent qualification by inheritance could not vest him with superior status after the accrual of cause of action. Section 6 of the N.-W.F.P. Pre-emption Act specifically lays down that the right of pre-emption shall exist subject to the provisions and limitations contained in the Act. Therefore, it is not possible to examine the question in the light of Mahomedan Law beyond the text of the Act itself There is, however, a reported case Muhammad Ismail v. Abdul Rashid (AIR 1956 Allahabad 1), in which the question was also examined in the context of Mahomedan Law (Hanafi School), and it was held that the right of pre-emption does not survive to the heirs if the pre-emptor dies before obtaining decree in his favor. In this connection, it will be interesting to note the following observation:- "Although the right of pre-emption runs with the land and is not initially personal, it assumes a personal aspect for the purposes of enforceability in a Court of law. From the moment of the sale in favor of the stranger till the date of the decree favor of the pre-emptor, the right can he enforced only by the person who was the owner of the pre-emptive property on the date of the sale of the property sought to be pre-empted. During this interval, the right is attached to the person or the owner of the preemptive property and he alone can enforce it in a Court of law. The right continues to be personal to him so long as a decree is not passed in his favor. During this interval, the right is neither transferable nor heritable. But as soon as a decree is passed in his favor the right ceases to be personal and becomes a proprietary right fit to be transferred as well as to be inherited."
The learned counsel relied on Hassan Muhammad v. Muhammad Hussain (PLD 1977 Azad J&K 40), but I find nothing in support of the proposition that the right of pre-emption is heritable. The Court has held that under the Hanafi Law it is not heritable while under the Shafei Law the right of pre- emption is heritable and that it is permissible to follow the Shafei Law on the point. As I have already said that the right is subject to the text of the Act, the matter cannot be adjudged on this basis. For the reasons given above, the pre-emption suit must fail as the respondent lacked the necessary qualification on the date of sale."
9. The next case is of Muhammad Younus (supra), which came before the Hon'ble five Member Bench of this Court. In this case the question apparently was similar to the one as came up for decision in the case of Azizur Rehman and the Court followed the decision in the said case and held that the right to pre-empt the sale was not heritable, therefore, the sale cannot be pre- empted.
10. The next case in line is of Malik Ghulam Nabi, a judgment of the Humble five Member Bench of this Court, where the facts were that one Shaikh Abdur Rauf, Respondent No,4, purchased the disputed land in Quetta in different transactions in 1972 and in 1973 from sons of Jhanda Khan. On 20-1-1980, the said respondent exchanged the land in question for a shop on Wazir Muhammad Road, Quetta with Muhammad Nasim respondent No,5. Respondent No,4 sold the shop to Respondent No,6, Saleh Muhammad. Haji Kanga Khan filed a suit for pre-emption against the Respondents Nos.4 to 6 in the Court of Assistant Commissioner, Quetta in respect of pieces of land.
Haji Kanga Khan died during the pendency of the suit. Amended plaint was filed by the legal representatives of Haji Kanga Khan and in the meanwhile matter was transferred to the Tribunal constituted under Ordinance I of 1968. The Tribunal by majority opinion recommended the dismissal of the suit on the ground that right of pre-emption after the death of plaintiff did not survive and the heirs had no right of pre-emption in accordance with the Muslim Law of Pre- emption. The award of the Tribunal was accepted by the Assistant Commissioner. The appeal of legal heirs of Haji Kangan Khan was dismissed by the Additional Commissioner so also the revision petition by Member Board of Revenue. A Constitutional Petition was filed in the High Court of Baluchistan, which too was dismissed for the same reasons. In this case the Court observed that in British Baluchistan Civil Justice Regulation, 1896, it was contemplated that if any question regarding succession, inheritance, pre-emption etc. Arises, the Court has to decide the dispute in accordance with the Muslim Law in the cases, where the parties are Muhammadans and that similar provisions were contained in Regulation No,II of 1913 and Regulation No,VI of 1939. The Court found that the right of pre-emption asserted by Haji Kangan Khan was based on the principle of Muhammadan Law and that it has to be decided accordingly and ultimately reached the conclusion, which is as follows:-- As in the present case, the pre-emptor had died during the pendency of the suit, therefore, according to Hanafi Law to which predominantly the Muslims of Baluchistan adhered to, the suit of the plaintiff was rightly dismissed by the Tribunal and the High Court. The plaintiffs/appellants had no right of preemption after the death of the pre-emptor as this right could not be inherited."
11. The next case is that of Khuda Yar, which is a judgment of the Hon.Ble three Member Bench of this Court. The facts of the case were that Muhammad Yar, the owner had sold his land to his nephew/son in law Ghuiam Muhammad on 29-8-1967. Mst.Zeenat Khatoon daughter of the vendor and wife of the vendee pre-empted the sale and so did Khuda Yar, the brother of the vendor and two suits were tried together. During the pendency of the suit Khuda Yar died and his legal representatives were brought on record. The trial Court dismissed the suit of Mst. Zeenat Khatoon but decreed that of successor of Khuda Yar. The two appeals were dismissed on which two separate Regular Second Appeals were filed in the High Court, where the appeal of Mst. Zeenat Khatoon was dismissed but that of Ghulam Muhammad, the vendee was allowed on the ground that upon the death of Khuda Yar his heirs and Ghulam Muhammad, the vendee had equal rights and therefore, the heirs could not enforce the claim of pre- emption. The Court in this case at page 1816 made the following observations:-- "The correct position, in our opinion, is that if a pre-emption suit was duly filed and the pre-emptor expired during its pendency, all the legal heirs of the deceased pre-emptor should entitled to he impleaded because, the right to sue, being heritable, obviously survives in favor of all of them, the other conditions imposed, as seen, being redundant. This is precisely the effect of the current law also namely, The Punjab Preemption Act, 1991, which per section 16 thereof goes indeed, a step further, postulating that where a pre-emptor dies after making any of the demands under section 13, the right of preemption shall stand transferred to his legal heirs."
' At page 1817 it reached the following conclusion:-- "Our conclusion, therefore, is that under the Punjab Preemption Act, 1913, the right of pre-emption, after due suit for the same has been instituted, was found judicially to be heritable but not transferable. Such was a further development of the view expressed in the Full Bench case of Faqir All Shah v. Ram Kishin, 133 PR 1907, where the heirs and successors of a deceased landholder in a village succeeded in pre-empting successive sales even though neither their predecessor had made any talb nor instituted the relevant suit in his lifetime."
12. In the case of Muhammad Ishaq, a judgment of Humble two Member Bench of this Court, the question of heritability of right of preemption again came up for consideration. The facts in this case were that Pehlwan Khan late father of the respondent instituted a suit for preemption of land on the ground that he was collateral of vendors, co-sharer in the suit land and an owner in the Deh.
During the pendency of the suit Pehlwan Khan died and an application for impleading his legal heirs was filed. Muhammad Sadiq, one of the sons of Pehlwan Khan filed another application that he be allowed to pursue the suit, which application was allowed by consent. The suit was decreed in favor of the legal heirs of late Pehlwan Khan. Appeal against it was dismissed. The Regular Second Appeal also met the same fate, which was challenged before this Court. In Para 11, the Court considered the question of heritability of right of pre-emption in the following words:-- "Reading through above passage will reveal that learned Single Judge in deciding 'this case was of the view that the case of Azizur-Rehman and others (supra) could not made applicable and did not follow the same for the reasons that the facts and circumstances of the case of Aziz-ur- Rehman and others (supra) were distinguishable and that the principles of Hanfi Law were not relied upon in the case. Evidently, learned Single Judge did not give weight to the pivotal/relevant point determined in that case i,e, that the pre-emptor, qualification on the date of sale and that subsequent qualification by inheritance could not vest him with superior status after the accrual.
Respondent's father Pelham, the original pre-emptor, as held in the case of Chhjju and others (supra), as well, could not establish his subsisting title on the date of decree palpably continue to have the feeble and predatory right of pre-emption enforced. Be that as it may, in case of Muhammad Younus (supra), . Wherein the point for consideration (in both the appeals) was "whether the appellant who did not possess the superior right of pre-emption at the time of sales but subsequently acquired this right by inheritance, could avail of his improved status to pre- empt the sales of the disputed properties. In other words, the question was "whether the right of pre-emption is heritable", Justice Muhammad Haleem, Chief Justice (as then he was) speaking for a five Member Bench, observed in unequivocal terms that "this question came up for consideration in Aziz-ur-Rehman and others v. Muhammad Nawaz, PLD 1988 Supreme Court 384, and it was held that the right to pre-empt the sale was not heritable, therefore, the sale cannot be pre-empted". Learned Judge in Chambers did not at all, discuss in his judgment as to what principle was laid down in that case. Accordingly, we do not feel ourselves inclined to agree with Mr. Paracha that learned Single Judge of the Lahore High Court correctly interpreted the cited cases i,e, Aziz-ur-Rehman and others and Muhammad Younus (supra). He failed to follow the principles laid down therein'.
The Court also came to the conclusion that in terms of Order XXII, C.P.C., the legal representatives of deceased pre-emptor are merely to continue the suit for considering the rights and disabilities of original party and that on his demise no such right subsisted in the legal representatives.
13. The last case is that of Nazir Hussain, which is a judgment of Hon'ble three Member Bench of this Court. The facts were that one lqbal sold a piece of land to Mushtaq and Bashir through registered sale deed. Ghulam Muhammad pre-empted the same through a suit. Ghulam Muhammad died during the pendency of the suit, whereupon his three sons and three daughters stepped in as plaintiffs. The suit was decreed.
' The appeal was dismissed. The High Court accepted the Regular Second Appeal and dismissed the suit 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 the said suit was decreed then the suit could not be continued by the heirs of pre-emptor unless the heirs themselves were possessed of right of pre-emption independent from that of the deceased pre-emptor. Reference was made to the case of Malik Ghulam Nabi and in para 6, the Court discussed and came to the conclusion as follows:-- "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 un-codified 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 Member 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 pre-emptor.
He could not offer any satisfactory answer to the said query and submitted only that the law of preemption 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 Pre- emption 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 pre-emption 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 pre-emption being heritable, the situation in the Province of Punjab was at par with the one obtaining in Baluchistan 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 SCMR 69) and the two Member Bench of this Court in the case of Muhammad Ishaq, had declared that the right of pre-emption 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 Baluchistan. Consequently, we hold that no exception could be taken to the impugned judgment of the Lahore High Court.
14. Having discussed the case-law referred to above, we find that on the very point as to whether the suit of pre-emption on the demise of the pre-emptor could not be continued by his legal heirs, such question has been adverted to by five Member Bench of this Court twice once in the case of Muhammad Younus and secondly in the case of Malik Ghulam Nabi, where it was categorically held that in the absence of codified law on the subject, the principle of Islamic Law will govern the case, which A does not provide pre-emption right to be inheritable. This very aspect of the case was directly considered in the case of Nazir Hussain, where it was noted that there are two five Member Bench cases in the field directly dealing with the question of heritability of right of pre- emption by the legal heirs of the pre-emptor who dies during the pendency of the suit and it was noted that on principle of Islamic Law, there was no heritability of such right and that being a law in the field,. The same was followed and the question was answered accordingly.
15. Before us also only question of heritability of right of preemption by the legal heirs of the pre- emptor who died during the pendency of the pre-emption suit is under consideration and the same in terms of the law laid down in the case of Muhammad Younus, Malik Ghulam Nabi and Nazir Hussain stands settled that the legal heirs will have no right to continue with the pre-emption B suit on the death of pre-emptor during the pendency of preemption suit.
16. The counsel for the petitioner has contended that such law applies to the Muslim Hanfi Sect and not to Shafi and Shia Sects. We however, note that though such argument is raised by the counsel for the petitioner but he did not show any material to us on the basis of which it can be said that the parties were not of Muslim Hanfi Sect or that they belonged to Shafi or Shia Sects.
17. This being the state of settled law on the subject, therefore, we find no merit in this petition, the same is, therefore, dismissed and leave refused.