' SHAHID WAHEED, J. --- The suit property sold in favour of the appellants vide Mutation No,. 966, dated 31.12.2009 was sought to be pre-empted by the respondent, Muhammad Nawaz, on the ground of his being Shafi Sharik, Shafi-Khalit and Shafi-Jar with the assertion that he performed the requisite Talabs in accordance with law. The appellants entered appearance before the learned Trial Court and contested the suit by filing written statement. During pendency of the suit, the appellants filed an application under Order VII, Rule 11, CPC for rejection of plaint on the ground that due to cancellation of mutation No,. 966, dated 31.12.2009 the suit property had been reverted to the original owner i,e, Hamad Naseer. The respondent resisted the above-said application by filing a reply. Learned Trial Court vide order and decree dated 27.5.2011 accepted the application and rejected the plaint. The respondent assailed the above-said order and decree dated 27.5.2011 through an appeal under Section 96, CPC before the learned Addl District Judge, Ferozewala, District Sheikhupura who accepted the same vide judgment dated 21.12.2011 and remanded the case to the learned Trial Court.
2. The appellants have filed the instant appeal under Order 43 Rule 1(u), CPC; and has assailed the validity of judgment dated 21 12.2011 passed by the learned Addl. District Judge. Ferozewala. District Sheikhupura.
3. Learned counsel for the appellants contended that after cancellation of Mutation No,. 966, the right to preempt the sale ceased to exist; and, thus the respondent could not maintain the suit: and, that the fact of cancellation of sale mutation No,. 966 was an admitted fact but this was not properly appreciated by the learned Addl. District Judge while passing the impugned judgment.
Conversely, learned counsel for the respondent vehemently opposed this appeal and submitted that ground urged in the application under Order VII, Rule 11, CPC could only be appreciated after recording of evidence; and, thus the learned Addl. District Judge rightly passed the judgment dated 21.12.2011.
5. I have considered the arguments canvassed by the learned counsel for the parties and perused the record.
6. In the case in hand, the appellants purchased the suit land from Hamad Naseer through an oral sale which was entered in the revenue record vide mutation No,. 966, dated 31.12.2009 (Annex-H). It was the case of the respondent that he came to know about the above-said sale on 11.2.2010 through Maqsood Ahmad son of Muhammad Abdullah in presence of Zaka Ullah Bhindar and Muhammad Asim while he was sitting in his Dera situated in village Sheikhupura Baidad; and, that after getting the knowledge of above-said sale he declared his intention to exercise his right of pre-emption in respect of the above-said sale. The respondent on 6.3.2010 instituted a suit for possession of the suit property through pre-emption. During pendency of suit, Mutation No,. 966 stood cancelled by the Revenue Officer vide order dated 15.3.2010. This fact has not been denied by the respondent. No,w, a question arises as to whether after cancellation of sale Mutation No,. 966 the cause of action to file a suit ceased to exist. Answer to the above-said question is in affirmative for the simple reason that as per Section :5 of the Punjab Pre-emption Act, 1991 the right of pre- emption arises in case of sale of immovable property. It means that when there is no sale of immovable property; there is no right of pre-emption. The right of pre- emption is not a right of re- purchase, either fromthe vendor or from the vendee, involving any new contract of sale but it is simply a right of substiution, entitling the pre-emptor, by reason of legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of all rights and obligation arising from the sale under which he has derived his title. It is, in fact, as if in a sale-deed the vendee's name is rubbed out and the pre-emptor's name is inserted in its place. Thus, when the sale or contract of sale ceases to exist then the right to pre-empt the sale also stands extinguished. The cancellation or revocation of sale, even during pendency of suit, terminates the right of pre- emption as it is an established principle of law that pre-emptor in order to succeed must successfully establish such right on the day of sale; on the day of filing a suit pre-empting the sale and its continued subsistence till the day of decree. In the instant case, the respondent claimed his right on the basis of sale made in favour of the appellant vide mutation No,.
966. Thus, when the above-said mutation stood cancelled, the cause of action to file a suit for pre- emption also stood extinguished as the suit property stood reverted to the original owner. In these circumstances the learned Trial Court validly rejected the plaint under Order 7. Rule 11, CPC.
7. There is yet another aspect of the mater which is worth consideration. The respondent has given details regarding Talab-e-Mowathibat in paragraph No,. 6 of the plaint which reads as under:- "That the plaintiff was informed on 11.2.2010 by one Maqsood Ahmad son of Muhammad Abdullah, Caste Jat. Resident of Sheikhupura Baidad about the transaction of sale of the suit land for the first time in the Majlis being attended by Messers Zaka Ullah Bhindar son of Ghulam Rasool, Muhammad Asim son of Muhammad Ashiq Caste Jat Virk, alongwith others while the plaintiff was sitting in his Dera situated in the village Sheikhupura Baidad and after receiving information about the transaction of the disputed sale, the plaintiff has spontaneously declared his intention to exercise the right of pre-emption there and then."
' The perusal of the abbve cited paragraph reveals that the petitioner had not disclosed the time of making of Talab-eMowathibat. This omission is fatal as per principle laid down by the Hon'ble Supreme Court of Pakistan in the cases of "Mian Pir Muhammad and others v. Faqir Muhammad through LRs and others" (PLD 2007 SC. 302), "Haqnawaz v. Muhammad Kabir" (2009, SCMR 630), "Muhammad All and seven others v. Humaira Fatima and two others" (2013 SCM R 178). The above stated omission was a fundamental flaw which as per principle laid down by the Hon'ble Supreme Court in the case of Ghulam Yasin and others v. Ajab Gull (2013 SCM R 23) was not curable. Thus in view of above flaw the plaint could also be rejected.
8. In view of above this appeal is accepted, judgment dated 21.12.2011 passed by the learned Addl.
District Judge, Ferozewala, District Sheikhupura is set aside and resultantly the order and decree dated 27.5.2011 passed by the learned Civil Judge 1st Class, Ferozewala, District Sheikhupura is restored. No, order as to costs F.A.O. Allowed.