Syed Iftikhar Hussain Shah, J.--The appellant has preferred this appeal against the judgment and decree dated 20.9.2006 passed by the learned Civil Judge 1st Class, Sahiwal whereby the appellant's plaint in a suit for possession through pre-emption, was rejected.
2. Succinctly, the facts of the case are that the appellant instituted a suit for seeking decree for possession through pre-emption in respect of the shop described in Paragraph No, 1 of the plaint situated at Saddar Bazar, Sahiwal which was sold by one Mst. Sakina Bibi to Respondents No, 1 & 2 for a consideration of Rs, 30,00,000/- vide Sale Deed No, 63 dated 9.1.2006 on the basis of his superior right of preemption being owner of adjacent shop of the shop in question. Respondents No, 1 & 2 further sold the aforementioned shop vide Sale Deed No, 171 dated '26.1.2006 in favour of Respondents No, 3 & 4 for a consideration of Rs, 80,00,000/-.
3. The respondents contested the suit and duing the pendency of suit, an application under Order VII Rule 11, 'CPC was made by Respondents No, 3 & 4. The learned trial Court, after hearing the parties, accepted the application vide order dated 20.9.2006 and rejected the plaint. Hence, this appeal.
4. Learned counsel for the appellant has contended that the appellant, after receiving information about the impugned sale, immediately made a jumping demand for pre-empting the sale and thereafter a notice of Talab-i-Ishhad was sent to Respondents No, 1 & 2 on 30.1.2006 and then the suit was instituted on 1.3.2006; that Respondents No, 1 & 2 with mala fide intention in order to defeat the superior right of pre-emption of the appellant, further sold the shop in question to Respondents No, 3 & 4 vide sale deed dated 26.1.2006 fictitiously mentioning the exaggerated amount of consideration; that the appellant had pre-empted the original sale and subsequent sale was hit by the rule of lis pendence but the learned Court below had rejected the plaint erroneously, therefore, the appeal is liable to be accepted and the remand of the case is inevitable for the decision of the suit on merits. Relies on ease titled 'Abdul Yameen Khan us. Ashrat Ali Khan and others (2004 SCMR 1270 [Supreme Court of Pakistani])", 'Muhammad Shafi and others vs. Sultan Mehmood and others (2011 SCMR 1453 [Supreme Court of Pakistani])", 'Muhammad Hussain vs. Muhammad through Legal Heirs and others (PLD 2010 Supreme Court of Pakistan 803)" AND 'Muhammad Khan and another us. Sadiq and others (PLD 1968 Lahore 929)".
5. On the other hand, learned counsel for the respondents have contended that Respondents No, 3 & 4 had purchased the disputed shop prior to the institution of the suit and even prior to the issuance of notice of Talb-i-Ishhad, therefore, the appellant could enforce his superior right of pre- emption, if any, in respect of the subsequent sale and the plaint has rightly be rejected. Relies on 'Muhammad Ramzan vs. Chaudhary Sirajuddin and 2 others (PLD 2011 Peshawar 98)", "Abdul Haq and Legal Heirs vs. Muhammad Sajjad and 2 others (PLD 2012 Lahore 480)" AND "Abdul Yameen Khan vs. Ashrat Ali Khan and others (2004 PSC 1517 [Supreme Court of Pakistan])".
6. We have heard the learned counsel for the parties and have perused the record.
7. The shop in question was sold by one Mst. Sakina Begum widow of one Zahoor Ahmad to Respondents No, 1 & 2 for a consideration of Rs, 30,00,000/- vide registered sale deed dated 9.1.2006. The appellant allegedly, after getting the knowledge of sale on 18.1.2006, announced that he will pre-empt the same. Thereafter the appellant sent a registered notice fulfilling the requirement of Talab-i-Ishhad to Respondents No, 1 & 2 on 30.1.2006 and the suit enforcing the superior right of pre-emption was instituted on 1.3.2006.
8. Respondents No, 1 & 2 sold the shop in question to Respondents No, 3 & 4 vide registered sale deed dated 26.1.2006. Admittedly, the subsequent sale of he shop in question was effected prior to the sending of notice of Talab-i-Ishhad and at the time of institution of the suit, the appellant was fully conversant that the property in question had already been sold to Respondents No, 3 & 4, however it is alleged by the appellant that the sale was effected just to deprive the appellant from enforcing his superior right of pre-emption.
9. We have gone through the case law produced by the learned counsels for the parties. In case titled "Muhammad Khan and another vs. Sadiq and others (PLD 1968 'Lahore 929)" subsequent sale was made during the pendency of suit. In case titled 'Muhammad Hussain vs. Muhammad through Legal Heirs and others (PLD 2010 Supreme Court of Pakistan 803)", during the pendency of suit filed by the, pre-emptor vendee sold the land in question whereas in the instant case the land had been sold prior to the institution of suit. In case titled 'Muhammad Shaft and others vs. Sultan Mehmood and others (2011 SCMR 1453 [Supreme Court of Pakistani])", the subsequent vendees were impleaded after the institution of the suit and the facts of the said case are not directly applicable to the facts and circumstances of the present case.
10. Both the learned counsels for the parties have relied on 'Abdul Yameen Khan vs. Ashrat Ali Khan and others (2004 SCMR 1270 [Supreme Court of Pakistan])" AND 'Abdul Yameen Khan vs. Ashrat Ali Khan and others (2004 PSC 1517 [supreme Court of Pakistan])" wherein it has been held that further sale made by the vendee prior to the institution of pre-emption suit, could not be brought within the four corners of lis pendence and such further sale would be a new transaction altogether of the pre-emptor, if interested in pre-empting the said sale, would have to file suit against the latest but not against previous one.
11. After the institution of suit for seeking decree for possession through pre-emption, the vendee/defendant is prohibited from entering into sale or re-sale of the disputed property as the lis is pending for adjudication and the provisions of Section 52 of the Transfer of Property Act are attracted only when the lis is pending.
12. In the case in hand, admittedly the shop in question had already been further sold on 26.1.2006 prior to the institution of the suit, which was instituted much later on 01.3.2006. The sale in favotir of Respondents No, 3 & 4 was much prior even to the institution of suit by the pre-emptor and it was not hit by the principle of lis pendenee. The sale in favour of Allah Rakha and Muhammad Ramzan Respondents No, 3 & 4 was a new transaction altogether and the pre-emptor/appellant should have filed a suit against the latest sale and not against the previous one. If the principle of lis pendenee is wrongly applied to the sales taking place prior to the institution of suit then every purchaser shall be made bound to wait for pre-emption suit and refrain from exercising his proprietary rights over the purchased land. The right of pre-emption was not available to the appellant against the previous sale, therefore, the learned trial Court has rightly rejected the plaint.
The impugned judgment and decree is in accordance with law, the same is hereby maintained.
In view of above, the appeal in hand is without any merit, the same stands dismissed.