1. NASIM HASAN SHAH, J.-The relevant facts are that Rehmat Ali sold ,a piece of land to Muhammad Saleem and to the other respondent. Tahir Saleem, a son of Rehmat Ali vendor, sued to pre-empt the sale. During the pendency of the suit. Tahir Saleem died. An application was made on behalf of Muhammad Iqbal and Ghulam Sarwar, his real brothers, to be substituted as plaintiffs for Tahir Saleem. The application was contested by the vendee-respondents but the learned trial Judge by his order dated. 20-12-1978 allowed the application on the view that the right of pre-emption was a heritable right and as Tahir Saleem, original plaintiff, was unmarried and had no children, Muhammad Iqbal and Ghulam Sarwar were his heirs and they were entitled to bring a suit for possession by pre-emption. The vendee-respondents filed a review petition before the trial Judge to review his order dated 20-12-1978 on the ground that in the presence of Rehmat Ali, father of Tahir Saleem, Muhammad, Iqbal and Ghulam Sarwar were not entitled to succeed to the estate of Tahir Saleem and, therefore, they could not be considered as the legal heirs of Tahir Saleem. The trial Court rejected the application. Reliance was placed on Muhammad 1gbal and others v.
2. Ghulam All Shah (PLD 1975 Lah. 1205).
3. The vendee-respondents, therefore, filed a revision application before the District Judge. The learned District Judge observed that in the presence of Rehmat Ali, his sons Muhammad Iqbal and Ghulam Sarwar would not succeed to the estate of Tahir Saleem on the principle that Rehmat Ali being the nearer in the degree would exclude Muhammad Iqbal and Ghulam Sarwar as heirs of Tahir Saleem. So far as the judgment of the Lahore High Court in Muhammad lqbal and 2 others v.
4. Ghulam Ali Shah observed that the principles enunciated in the said case was that to qualify as a legal representative of the deceased-plaintiff; the person who claims to be substituted as a party must not only be an heir of the vendor but also an heir of the deceased-plaintiff. In this case, in the presence of RehmatAli, vendor, Muhammad Iqbal and Ghulam Sarwar were not heirs of Tahir Saleem. Merely because they were heirs of Rehmat Ali vendor would not make them the legal representatives of Tahir Saleem. Nor would the fact that Rehmat vendor cannot himself be a legal representative of Tahir Saleem make Muhammad Iqbal and Ghulam Sarwar heirs of Tahir Saleem.
5. Consequently, as there was no legal heir of Tahir Saleem other than Rehmat Ali vendor who himself was disqualified to be his legal representative, the right to sue had died with the death of Tahir Saleem and the learned trial Judge was, therefore, in error in allowing Muhammad lqbal and Ghulam Sarwar to be made plaintiffs The revision was accepted and the suit was dismissed, vide order dated 10-12-1980.
6. The petitioners, therefore, moved the Lahore High Court by a writ petition. The learned Judge in the High Court held that though the right of pre-emption was heritable but this would also be inherited by those persons who have a preferential right either on account of ownership of land which may devolve upon them or on account of their being nearer heirs of the vendor than the vendee. It was held that the learned District Judge had correctly applied the rule enunciated in Muhammad Iqbal's case in the facts and circumstances of this case, hence no exception could be taken to the findings. The writ petition was dismissed on 2-2-1981. Hence this petition for leave to appeal.
7. Syed Abdus Salam, learned counsel for the petitioners has argued that the question arising is whether a pre-emptor, who died during the pendency of the suit can be legally represented under Order XXII, rule 1, C. P. C. By his real brothers in the presence of the father who is a vendor? The learned counsel submits that the Muhammadan Law heirs include the father but in his absence a brother can exercise the right of pre-emption under section 15 of the Punjab Pre-emption Act, 1913.
8. The contention is that every person entitled to succeed under the law is competent to maintain the suit for pre-emption and it is open to remote heirs to sue for pre-emption, if the nearer heirs do not sue. Reliance is placed on a recent judgment of this Court entitled Jala Din v. Saeed Ahmad (PLD 1979SC879).
9. The above submissions require further consideration. Leave to appeal is, accordingly, granted.
10. Security in the sum of Rs. 2,000.
11. The appeal to be made ready on the present record.