1. NASIM HASAN SHAH, J.--The dispute in this case relates to a piece of agricultural land measuring 100 kanals situate in Revenue Estate of Mauza Kalair Kot Khanda, Tehsil Daska, District Sialkot. One Habibur Rahman, who is not a party to these proceedings, was the original owner of this land. By weans of a registered sale deed dated the 7th January 1967, he sold the land to Ali Muhammad, Mohammad Sharif, Mohammad Shafi, Nazeer and Rukan Din, defendants Nos. 1 to 5 (in the suit), for a consideration of Rs. 23,000. On the 9th May, 1967, Rukan Din, defendant No. 5, sold his share to Ali Mohammad, defendant No. 1 and a mutation to this effect was duly sanctioned by the revenue authorities. The petitioners herein instituted a pre-emption suit pleading that as defendant No. 5, Rukan Din, one of the vendees was a stranger, the plaintiff's were entitled to pre-empt the sale. It was also contended that even if the sale by Rukan Din to Ali Mohammad was a valid transaction, it would no effect the petitioners' superior rights of pre--emption.
2. The learned Civil Judge trying the suit framed several issues of which Issue No. 1 is important for our purposes and reads as follows: - "Whether the defendant No. 5 alienated his share in the suit land to defendant No. 1, in recognition of his superior right of pre-emption? If so, when and with what effect?"
3. The trial Judge decreed the suit of the petitioners holding that although the sale by defendant No. 5 in favour of defendant No. 1 was made prior to the institution of the suit for pre-emption the said sale of land by defendant No. 5 in favour of defendant No. 1 was not made in a recognition of the latter's superior rights of pre-emption. Consequently, the above issue was decided in favour of the plaintiffs and their suit decreed.
4. The defendants aggrieved by the above decree filed an appeal before the learned 'District Judge who relying upon a Full Bench judgment of the Lahore High Court in the case of All Muhammad and another v. Muhammad Din and others (AIR 1941 Lah. 444), wherein it was laid down that "where a vendee having an equal right of pre-emption associates with himself in a joint purchase a stranger, he loses his right of pre-emptor and cannot be allowed to retain even his own share of the purchase, but if the vendee during the pendency of the suit removes the defect by purchasing the stranger's shares at any stage before the final adjudication of the case, the pre-emptor cannot succeed irrespective of the fact that the subsequent acquisition takes, place after the limitation had, expired" accepted the appeal. It was found that in this case Rukan Din, the stranger, having sold his share to defendant No. 1 even before the institution of the suit for pre-emption, the pre- emptor did not have any superior rights of pre-emption with respect to the sale. Consequently, the appeal was allowed and the decree of the learned Civil Judge set aside.
5. Dissatisfied by the said determination, the pre-emptors (petitioners herein) filed a Second Appeal (R. S. A. No. 1173 of 1970) before they, Lahore High Court which was heard by the then learned Chief Justice (Mr: Justice Sardar Muhammad Iqbal-as he then was). The learned Chief Justice in a very well considered judgment, wherein all the previous case-law was reviewed, dismissed the appeal observing as follows: - "The only question which arises for consideration is as to whether a vendee having equal right of purchase as against plaintiff-pre-emptor loses his right by associating the stranger and if so whether he can resist the suit of the plaintiff in the event the stranger transferred his share to anyone of those vendees or to the vendees before the suit is decreed. It is now well established by authority that the vendee having an equal right with the pre-emptor if associates with himself a stranger he loses his right and the suit of the plaintiff in that event has been decreed. It is equally well established that if a vendee during the pendency of the case, purchases the stranger's share, the pre-emptor cannot succeed irrespective of the fact that the subsequent acquisition taken place after the limitation bad expired"
6. The plaintiffs having failed even in the High Court approached this Court -by this petition for leave and the only contention raised before us by Mr. Masood Akhtar is that the High Court had not addressed itself to the specific question whether the share of defendant No. 5 was transferred in favour of defendant No. l in recognition of his superior right of pre-eruption. He submitted that the law being that when such a transfer is not in recognition of the superior right of pre-emption the sale becomes pre-emptiable this question should have been adverted to specifically. In this connection he relied upon a judgment of a Single Judge of the Lahore High Court reported as Manga v. Imam Din and others (AIR 1933 Lah.117).
7. After giving our full consideration to the submission of the learned counsel we have come to the conclusion that this appeal must fail. The ratio in the case Manga v. Imam Din and others appears to have been effected by the Full Bench decision of the same High Court reported as Ali Muhammad and another v. Muhammad Din and others. To overcome this judgment, the learned counsel for the petitioners pleaded that the rule laid down that the pre-emptor must maintain his superior position till the date o the decree, requires reconsideration. No strong reason has been advance in support of this plea. In any event the present is hardly the case for such an exercise.
8. Herein the stranger in the sale (defendant No. 5) had surrendered his rights in favour of a co- sharer (defendant No. 1) even before the petitioners had filed their suit. In these circumstances, the petitioners do not have any right of equity in their favour. The present case does not therefore, appear to be a fit one for re-examining the principle ruling the field that the pre-emptor to succeed must retain his superior position till' the date of decree.
9. The overall result is that this petition must fail and is hereby dismissed.