' In this constitutional petition the order of the learned District Judge, Faisalabad dated 10th December, 1980, by which he accepted the revision petition filed by the respondents and dismissed the application filed by the petitioners for substitution as heirs of the deceased-pre-emptor. A brief narration of the facts would not be out of place.
2. One Rehmat Ali had three sons, the petitioners and one Tahir Saleem. Rehmat Ali sold his land to the respondents and Tahir Salesm filed a suit for pre-emption. During the pendency of the suit Tahir Saleem died. An application was made by Muhammad Iqbal and Ghulam Sarwar, the real brothers of the deceased for being substituted as plaintiffs for Tahir Saleem. The application was contested by the defendants but the application was allowed on 20th December, 1978 by the trial Court. The respondents also made an application for review before the trial Court which also did not find favour which was dismissed by the order dated 8th February, 1979. The respondents filed a revision on which it was held that the petitioners had no locus standi to file the application for being substituted for the original pre-emptor as the father of Tahir Saleem was alive and as such the petitioners were not the heirs.
3. It is an established proposition of law that under the Muhammadan Law when there is no child the father inherits as a residuary and the nearer in blood would exclude the remoter. The observation of A the learned District Judge that the petitioners are not the heirs so as to entitle them to the inheritance of the estates of Tahir Saleem is unexceptionable.
4. The learned counsel for the petitioners relied on Muhammad lqbal etc. v. Ghulam Ali Shah (I) in which earlier case reported as Allah Dad v. Hukam Dad (2) was considered and earlier judgment reported as Nawab v. Irshad Begum (3) was overruled. There is no dispute about the proposition that the right of pre-emption is heritable. In lqbal's case it was observed that Order XXII, C. P. C.
Does not give the heir an unqualified right of substitution for the deceased. Under Order XXII, rule 3, C. P. C. Legal representatives of the deceased plaintiff are to be made a party to proceed with the suit if the right to sue survives. The facts of this case were that M transferred by sale agricultural land to a person for a sum of Rs, 5,610, mother of vendor M instituted pre-emption suit to pre-empt the land. Pending this suit N died S daughter of N and sister of the vendor M move application for being impleaded as legal heir of her mother N Pending her application for being impleaded as legal representative under Order XXII, C. P. C. S also died. On her death her husband G put an application for being impleaded as legal heir and representative of his wife S. In these circumstances the question arose whether the right of pre-emption was heritable and as such S could be impleaded as legal representative of her mother N the deceased preemptor and whether G the husband of C claiming inheritance from S could be impleaded as her legal representative.
It was held that though the right of pre-emption was heritable but would only be inherited by those persons who have a preferential right either on account of ownership of land which may devolve upon them B or on account of their being a nearer heirs of the vendor than the vendee. This judgment does not, in any way, advance the case of the petitioner. The learned District Judge has correctly applied the law regarding the substitution of the original plaintiff/pre-emptor. No exception can be taken to the findings.
5. This writ petition has no force which is hereby dismissed in limine.
(1) PLD 1975 Lah. 1205 (2) PLD 1960 Lab. 900
(3) PLD, 1953 Lah. 317