' KH. IMTIAZ AHMAD, J.--- Through the present civil revision, the judgment and decree dated 22-3- 2004 passed by the learned A.D.J. Gujjar Khan has been challenged whereby while accepting the appeal, he set aside the judgment and decree dated 7-1-2002 passed by the learned Civil Judge, Gujjar Khan and resultantly, dismissed the suit.
2. The relevant facts for the disposal of this civil revision are that Barkat Hussain the predecessor of the present petitioners filed a suit for possession through preemption against Muhammad Aslam etc with regard to the land measuring 4 kanal 5 marlas bearing khasra No 665 min measuring 3 kanal 17 marlas and khasra No. 668 min measuring 8 marlas situated in Village Jharmout Tehsil Gujjar Khan in consideration of Rs.30,000. In fact, the land was owned by one Dost Muhammad who was the real brother of pre-emptor Barkat Hussain and real paternal uncle of Muhammad Aslam vendee. The sale was made through registered sale-deed dated 4-4-1985. It was alleged in the plaint that no notice of sale was given to the plaintiff and that the plaintiff had superior right of pre- emption being the real brother of vendor Dost Muhammad. The said suit was filed on 7-1-1986 under the Punjab Preemption Act, 1913. On 22-2-1986 both the parties made the appearance before the Court and it was agreed that if the defendant make the statement on Oath that he had purchased the disputed land in the sum of Rs.1,00,000 then the plaintiff was -ready to pay the entire amount. Accordingly, defendant made the statement that he had paid Rs.1,00,000 and also admitted that pre-emptor/plaintiff was the brother of the vendor and accordingly in view of the statements of the parties, the learned trial Court vide judgment and decree dated 22-2-1986 decreed the suit of the plaintiff in the sum of Rs.1,00,000 and directed the plaintiff to deposit the amount after deducting Zar-e-Panjum till 30-4-1986 otherwise the suit would be deemed to be dismissed. It may be mentioned here that the said amount had been deposited by the plaintiff. It is also pertinent to mention here that the sale took place through registered sale-deed dated 4-4- 1985 which was subsequently produced in evidence as. Exh. D-1. The perusal of the said registered sale-deed shows that in fact the land measuring 4 kanal 5 marlas was sold by Dost Muhammad bearing Khewat No. 312 total measuring 38 kanal 7 marlas but it was further narrated in the registered sale-deed that Hisa Dari possession was handed over to the vendee Muhammad Aslam from khasra No. 665 min measuring 3 kanal 17 marlas and number Ichasra 66.8 min measuring 8 marlas. Accordingly, the Mutation No. 1323 on the basis of this registered document, was also sanctioned which was subsequently produced in evidence as D-2, the perusal of which also shows that the sale was from entire khewat and not from specific number khasra. This decree dated 22- 2-1986 passed in favour of Barkat Hussain was challenged by respondents Nos. 2 to 5 herein namely Zubaida Begum, Mst. Maqsood Begum, Mst. Shah Begum and Mst. Phullan Bi through a petition under Section 12(2), C.P.C. On the ground that the sale was affected from the entire khewat and not from any specific number khasra but the decree was obtained of specific khasra numbers so it was based on fraud and misrepresentation. The said petition under Section,12(2), C.P.C. Filed by respondents Nos. 2 to 5 herein was accepted by the learned trial Court vide order dated 11-2- 1989 and resultantly the judgment and decree dated 22-2-1986 passed in, favour of Barkat Hussain pre-emptor was set aside. Meanwhile, since Muhammad Aslam vendee had also withdrawn the amount of Rs.1,00,000 deposited by the pre-emptor so he was also directed to re-deposit the said amount in the Court. This order passed on a petition under Section 12(2), C.P.C. Dated 11-2-1989 was challenged before the appellate Court. However, during the pendency of the appeal, Muhammad Aslam who was the vendee of the land moved an application for the deletion of his name as party from the appeal and his name was deleted. However, the remaining respondents and Barkat Hussain entered into an agreement and made the statement before the appellate Court and produced the agreement before the appellate Court but the learned appellate Court observed that though the respondents Nos. 2 to 5 herein had entered into a compromise but dismissed the appeal on the ground that the impugned order passed on a petition under Section 12(2), C.P.C. Was not appealable order and the appeal was not maintainable. This order is dated 27-6-1994 and then the natural result was that the original suit for pre-emption was revived. After the revival of the suit, the learned trial Court also directed the plaintiff to implead respondents Nos. 2 to 5 in the main suit. Accordingly the said respondents were also impleaded as party in the suit and the learned Civil Judge, out of the pleadings of the parties, framed the following issues:-
(1) Whether the plaintiff's suit is hit by partial partition and as such is liable to be dismissed? OPD.
(2) Whether the plaintiff amended his plaint beyond the scope of the order of the Court, if so, its effect?OPD.
(3) Whether the plaintiff's suit is liable to be dismissed in view of preliminary objection No. 2 of written statement of defendant No.1?OPD.
(4) Whether the plaintiff has no exercise-able right of pre-emption due to non-exercise of Talb- eMuwathibat and Talb-e-Ishhad? OPD.
(5) Whether the plaintiff's suit is not proceed-able after repeal of Punjab Pre-emption Act, 1991?
OPD.
(6) Whether the plaintiff has got superior right of pre-emption regarding the sale of land dated 4- 4-1985? OPP.
(7) Whether the ostensible sale price of Rs.1,00,000 was fixed and actually paid by the defendant/vendee? OPP.
(8) If issue No.7 is proved then what was the market value of the suit land at the time of its sale?
OPP.
(9) What is the effect of previous compromise/statement of the defendant No.1 dated 22-2-1986?
OPP.
(10) Relief.
3. The learned trial Court decided issues Nos. 1 and 2 in affirmative. Issues. Nos. 3, 4, 5 and 6 were decided jointly and it was observed that after the promulgation of Punjab Pre-emption Act, 1991, the preemption laws of 1913 had been repealed and the plea of collateralness was not available to the plaintiff nor the Islamic Talbs were alleged in the plaint, so he had no right of pre-emption.
Issue No. 7 was decided that the sale price was Rs.1,00,000. Issue No. 8 was decided to the effect that though the compromise was affected but since that decree has been set-aside, so the said compromise has nothing to do with the decision of the present case and resultantly vide judgment and decree dated 11-2-1999 dismissed the suit of the plaintiff: The pre-emptor challenged this decision dated 11-2-1999 before the appellate Court. The appellate Court vide judgment and decree dated 18-9-2001 set aside the judgment and decree passed by the learned trial Court on the ground that the learned trial Court committed illegality on the face of the record by holding that Punjab Pre-emption Act, 1991 will deal with the disputed sale which took place in the year 1985.
It was further observed that the law of pre-emption of 1913 would be applicable in the present case and the case was remanded to decide it afresh in the light of the provisions of the Punjab Preemption Act, 1913. Once again the case was remanded and during this period, it may be mentioned here that the application for amendment in the plaint was also moved to the effect that sale of land was from khewat, which was allowed and thereafter once again, the learned trial Court vide judgment and decree dated 7-1-2002 decreed the suit of the plaintiff and directed the plaintiff to deposit Rs.1,00,000 if not already deposited within one month. This judgment and decree dated 7-1-2002 was thereafter challenged in appeal. It may be mentioned here that during the pendency of this appeal, the pre-emptor died and he was survived by his legal heirs, the widow, sons and daughters. The learned ADJ vide impugned judgment and decree dated 22-3-2004 in para No. 4 observed as under:-- "I have come to the view after considering the arguments of learned counsel for the parties and the perusal of the rulings on the subject that although no exception could have been taken against the findings of the learned trial Court on all the issues but the fact remains that it is the settled law that the appeal is considered to be the continuation of the suit for all practical purposes and since the pre-emptor/plaintiff has died during the pendency of the present appeal and being represented by his widow along with his sons and daughters, as such the matter would have to be reconsidered by this Court under issues Nos. 6 and 9 relating to the superior right of pre-emption and compromise because the vendee/defendant/ appellant namely Muhammad Aslam is admittedly real paternal nephew of the vendor, whereas deceased/plaintiff was real brother of the vendor, as such the superior right of pre-emption under the old law which was available to the deceased/plaintiff has been ceased to have been available to his legal heirs, because his sons and daughters are on equal footing along with vendee/defendant being nephew and niece of the vendor coupled with the fact that his widow has also no preferential rights under the old law. As such, I find that the provision of section 21-A of the Pre-emption Act, 1913, requires that the right of pre-emption can be improved by the vendee/defendant during the pendency of the suit and for that matter during the pendency of the appeal being continuation of the appeal only by way of inheritance and succession and the same is case of the present parties before this Court. As such the findings of the learned trial Court are hereby reversed on issues Nos. 6 and 9, relating to the superior fight of preemption and effect of previous compromise and resultantly, the appeal is hereby accepted and the suit stands dismissed."
4. In fact this judgment and decree dated 22-3-2004 has been challenged before this Court through the present civil revision.
5. The learned counsel for the petitioner contended that if the decree has been passed in favour of the plaintiff prior to the promulgation of Punjab Pre-emption Act, 1991, then subsequently his right cannot be defeated merely on the ground that his legal heirs had no preferential right over the vendee. He contended that though the appeal is continuation of the suit but the right stands completed when the decree was passed in favour of the plaintiff and the legal heirs can continue to protect that right in appeal. He also contended that the vendee can only improve his status through the inheritance or succession during the pendency of the suit but not after the passing of the decree in favour of the plaintiff.
6. On the other hand, the learned counsel for the respondents supported the impugned judgment and decree and contended that the appeal is a continuation of the suit and the legal heirs are also to prove that they had also the superior right of pre-emption and that the right is not inheritable. In this respect, he had placed reliance upon the cases reported in 2007 SCMR 1428, 1990 CLC 1183 (Peshawar), 2007 SCMR 1491, 2011 CLC 1174, 1989 SCMR 69, 2012 SCMR 1185, PLD 2010 SC 1048, 2007 SCMR 1478 and PLD 1988 SC 384.
7. Arguments heard. Record perused.
8. In the present petition, the determining facts are (i) that whether if the decree is passed prior to the promulgation of Punjab Pre-emption Act, 1991 but thereafter it was set-aside and in the meanwhile the Punjab Pre-emption Act, 1991 came into force then whether the suit would be hit by the provisions of Punjab Pre-emption Act, 1991 and (ii) whether the legal heirs can continue with the appeal if the decree is validly passed in favour of the pre-emptor or they are also to prove their superior right of pre-emption.
9. As has been mentioned above that the present decree was initially passed in favour of the plaintiff on 22-2-1986 i.e. Prior to the promulgation of the Punjab Preemption Act, 1991 and prior to the target date 31-1-1986 mentioned in the case of Said Kamal. As far as the improvement of status by the vendee during the pendency of appeal as is in the present case is concerned, in the case of Fazal Hussain v. Karim through Legal Heirs and others (2002 SCMR 648), the august Supreme Court with regard to the same proposition observed as under:-- "Plea raised by the vendees was that since appeal was continuation of the suit, therefore, improvement of status during pendency of the appeal had to be considered by the Courts below-- -High Court had rightly found improvement in the status by the vendee must have been made before the final judgment in the case on merits was passed, might be against improvement of status through succession made during the pendency of appeal was of no avail and such findings was perfectly in accordance with the law laid down in this behalf by the superior Courts."
The perusal of the above mentioned judgment clearly shows that the improvement can be made by the vendee only during the pendency of the suit and prior to the decree passed in favour of the plaintiff and in case of improvement during the pendency of the appeal said improvement cannot be considered and is of no legal value. The other contention is that whether during the pendency of appeal, the legal heirs should prove their superior right of pre-emption. Suffice, it would be to observe that right of pre-emption runs with the land and is not personal initially. It turns out to be personal for the purpose of its enforceability in a court of law right from time of sale of the property till the date of decree in favour of the pre-emptor. The said right remains to be personal until a decree is passed in favour of the plaintiff and during this period i.e. Prior to the passing of the decree, the said right is neither transferrable nor inheritable. If the pre-emptor dies before obtaining a decree in his favour in the trial Court or as the case may be, the appellate or revisional court, his right of pre-emption shall remain exclusively personal and shall not survive to his heir.
However, when the decree is passed in his favour then the right becomes a proprietary one and is not only capable of being transferred but also inherited. To put it in simple words, the pre-emptor must maintain his superior right of pre-emption on three crucial dates (i) the date of sale, (ii) the date of filing the suit and lastly till the passing of decree in his favour. However, where the decree is passed in his favour as is the position in the present case and the pre-emptor dies during the pendency of the appear then his legal heirs are not to prove their independent right of pre- emption against the vendee. In the case of Shah Muhammad and others v. Noor Din (PLD 1954 Lahore 461), it was held that the suit abates if plaintiff dies during pendency of suit. No abatement of suit can take place after decree. Almost on the basis of similar facts in the case of Noor and others v. Mst. Sattan through legal representatives and others (PLD 2013 Lahore 30), the same was held.
10. As far as the application of Punjab Pre-emption Act, 1991 is concerned, in this regard reliance may be made to the case of Nazir Begum and others v. Fazal Dad and others (1999 SCMR 210), wherein the Hon'ble Supreme Court of Pakistan has held that a decree passed in favour of preemptor before the target date i.e. 31-7-1986 will remain protected notwithstanding the fact that the same was set aside later and pre-emptor is not debarred to have the case adjudicated in accordance with law applicable before the target date i.e. 31-71986. In this way, since the compromise by the vendee was also prior to the date 31-7-1986 wherein he also admitted the superior right of pre-emptor Barkat Hussain, the said compromise would be enforceable under the old law.
11. Now coming to the case-laws cited by the learned counsel for the respondents, suffice it would be to say that the facts of the said cases are quite distinguishable. In the case reported in 1990 CLC 1183 (Peshawar), the suit of pre-emption was dismissed and the decree was not passed in favour of the plaintiff and appeal also met the same fate and then the plaintiff filed the civil revision, during the pendency of which, the pre-emptor died and so it was on that basis that in the said case it was held that no decree was passed in favour of preemptor till revisional stage of litigation and during pendency of revision pre-emptor died and so the said right of pre-emption which was un-inheritable and that right stood distinguished with the death of preemptor. Now in the present case, the decree has already been passed in favour of the plaintiff as mentioned above on 22-2- 1986. Similarly in the case captioned as Muhammad Ishaq v. Muhammad Sadiq (2007 SCMR 1478) also the plaintiff died during the pendency of the suit and it was in this background that the vendee improved the status after the death of vendee and the pre-emptor was unable to maintain his status till the date of decree. As has been mentioned above that all the judgments referred by the learned counsel for the respondents have no bearing on the proposition in hand.
12. In view of what has been said above, I am of the considered opinion that the learned appellate Court had committed illegality by dismissing the suit vide judgment dated 22-3-2004. Accordingly, this civil revision is allowed with the result that the judgment and decree of the learned appellate Court dated 22-3-2004 whereby the suit of the plaintiff was dismissed is set aside and that of the learned trial court dated 7-1-2002 whereby the suit was decreed stands restored.