KARAM ELAHEE CHAUHAN, J.-Mst. Zohra Bibi and others (vendors) sold the land in dispute which is described more fully in the petition to (i) Muhammad Mohsin and his minor son Naim Ahmad on 30-12-1970.
2. The present petitioner/plaintiff filed a suit to pre-empt the aforesaid sale which was decreed by the learned Civil judge on 1-3- 1973.
3. It appears that during the period of limitation prescribed for filing a pre-emption suit, the original two vendors sold the aforesaid land to Ahmad Hassan who became a party in the suit in the civil Court, and feeling aggrieved from the judgment of the learned Civil Judge whereby he had refused to give effect to his purchase, filed an appeal which was accepted by the learned Additional District Judge vide his judgment dated 8-9-1973, whereby he dismissed the suit of the petitioner/plaintiff on the ground that Ahmad Hassan having an equal right of pre-emption with the plaintiff (both being proprietors in the village)-and the subsequent sale being within the period of limitation, the plaintiff's suit could not have been decreed due to the aforesaid eventuality or development. It may be mentioned here that Ahmad Hassan was a father of vendee No. 1 and grandfather of vendee No. 2.
4. The plaintiff petitioner filed a second appeal being R. S. A. No. 383/73, but without any success as it was dismissed by the High Court on 19-7-1980. The petitioner has now come up in a petition for special leave to appeal to this Court.
5. Learned counsel argued that Naeem Ahmad vendee No. 2 (in the original sale) was a minor and, therefore, further sale by him of his share to his grandfather Ahmad Hassan was not in his welfare and the two courts below have erred in upholding the aforesaid further sale. The contention has no merit, because, by the further sale the property has been transferred to the grandfather of the vendee No. 2 and father of vendee No. 1, in exercise of his own right of pre-emption, for a price of Rs.
40,000 which is higher than the original price of Rs. 25,000 which as such is an act of good management, whereby the property will remain in that family, which obviously, even otherwise, is an act for the walfare of the minor who but for this re-transfer would have remained exposed to the hazard of the petitioner's suit, whose aim is to deprive him and his family of this property altogether. Furthermore it is very strange that the plaintiff/petitioner talks of looking after, and poses to be concerned, with the welfare of his minor opponent when his own sole game as above explained is to act against his welfare and snatch away this very property from him, through the preselit suit.
6. The next point argued was that the further sale by minor is void as a minor is incapable of making a transfer of his immovable property, The plea has no substance, inasmuch as, the first purchase by the minor was made through his father (vendee No. 1) and further sale is also being made by him through his father, who being a natural and legal guardian, is competent to transact a sale or to be more precise a further sale which as has been shown above is in the welfare of the minor, particularly when the father has sold his share which is a guarantee in itself about the beneficial nature of the further sale.
7. It was then argued that the further sale was fictitious, collusive, without consideration and was not in exercise of any right of pre-emption of Ahmad Hassan. The contention has no force inasmuch as the plaintiff-petitioner led no evidence regarding the fictitious or collusive nature of the transaction in dispute, and did not utter a single word on this subject in his statement when he appeared as his own witness. Learned counsel replied, that this was so, because, the learned Civil Judge, had not framed any issue on this aspect of the case in spite of that fact it had been duly pleaded by him in his replication. It may be mentioned that the petitioner never claimed striking of any such issue during the whole period of trial before the trial Court. Or the first or the second appellate Court despite of his being aware of his own pleadings and case. In these circumstances, it is too late in the day to attribute the failure or omission of any statement on his part on this particular feature of the case, to the trial Court or the lower appellateCourts. As regards the last limb of the argument mentioned earlier in this paragraph, there is evidence on record that Ahmad Hassan had purchased the property exercise of his right of pre-emption from his son and grandson for a valuable consideration. There was no satisfactiory rebuttal of this evidence in any form. From the side of the plaintiff on the record. It is well settle that a plaintiff in order to succeed must possess and retain a preferential right at three stages viz. Date of sale, date of suit, and date of decree. In the instant case the right of the plaintiff did not remain superior or preferentia by or at the last stage and his suit therefore was rightly dismissed.
8. The result is that the views of the two Courts below are unexcep--tionable. The plaintiff/petitioner has not been able to make out any case warranting interference by this Court. The petition has no merit and is consequently dismissed.