ZAFFAR HUSSAIN MIRZA, J.-- The dispute in this case relates to 1/3rd share in agricultural land comprising Khasras Nos. 524, 526 and 527 admeasuring 42 Kanals 13 Marlas situate in the area of village. Mamral, Tehsil Haripur, District Abbottabad. This land was owned and possessed by three co-sharers in equal shares, namely, Lal son of Gulab, Gulab son of Niaz Ali and Sher Zaman the predecessor-in-interest of the petitioners. By virtue of Mutation No.261, dated 5-8-1978 in consideration of Rs.11,000, Lai sold his 1/3rd share in favour of Gulab, The latter in turn sold the same land by means of Mutation No.305 attested on 28-7-1979 to Sher Zaman who as already stated, was a co-sharer to the extent of 1/3rd in the land.
2. On 1-9-1979, Abdul. Karim respondent No.1 herein instituted a suit for possession through pre- emption against Gulab the first vendee, on the ground of co-ownership, contiguity and participation in immunities. Subsequently Sher Zaman was also impleaded as co-defendant in the suit. Gulab and Sher Zaman contested the suit and the trial Court rejecting the defence set up decreed the suit on 3-6-1981. On appeal, however, the learned Additional District Judge, Haripur, having found that as the second sale had been completed on 28-7-1979, after lapse of one year from the previous sale, affirmed the finding of the trial Court and dismissed the appeal on 20-8- 1983.
3. The petitioners representing the second vendee Sher Zaman thereupon challenged the decree in the Peshawar High Court, Peshawar, who also dismissed their revision application vide order, dated 9-5-1984. In the High Court the argument of the petitioners was that in view of the transfer of the suit land by the purchaser prior to the institution of the suit for pre-emption, in favour of Sher Zaman and his being a person having equal right of pre-emption with the pre-emptor being a ca- sharer, by virtue of section 17(1) of the N.-W.F.P. Pre-emption Act, the right of the pre-emptor lapsed and the suit did not lie. This argument was repelled by the learned Judge in the High Court on the ground that the second sale not having been effected within the period of one year during which the suit for pre-emption was competent, and during which period the vendee could transfer the property in favour of a person having equal right, the transfer did not affect the right of pre- emption of plaintiff Abdul Karim. In coming to this conclusion the learned Judge placed reliance on a decision of this Court. Ikramullah and others v. Said Jamal 1980 SC hi R 375.
4. After hearing the learned counsel for the petitioners, who at, seeking leave to appeal from the judgment of the High Court, we feet that the reliance placed by the learned Judge in the High Court on the cited decision of this Court was misplaced. The question in the reported case was whether the defendant had improved his status by means of purchase of the land in dispute from the to co-defendants in terms of section 16 of the N.-W.F.P. Pre-emption Act. It was in this connection that this Court referred to section 4 of the Limitation Act and held that its provisions merely give the privilege to a party to institute a suit on the re-opening of the Court, if the period of limitation expires on a day when the Court is closed. It was pointed out that the said section 4 does not have the effect of extending the period of limitation. It appears to us that the principle enunciated by this Court in the cited case referred to the Explanation appended to section 16 of the N.-W.F.P. Pre- emption Act which contains the modes "after the expiry of the period of limitation provided for a suit for pre-emption". The effect of this explanation is that no pre-emptor would lose a subsisting right of pre-emption by reason of the fact that the vendee (defendant) as after the expiry of the period of limitation provided for a suit for pre-emption, transferred the property in dispute to a person having a right of pre-emption equal or superior to that of the plaintiff. Prima facie the explanation clarifies the principle underlying enacting part of section 16 which made it a pre- condition for the passing of a decree for pre-emption that the pre-emptor shall continue to have right of pre-emption until the date of the decree. It appears to us that so far as section 17(1) is concerned the question of the period of limitation, which was imported by the High Court in construing this section is wholly irrelevant. The clear language of this provision is to the effect that a suit for pre-emption shall not lie where the purchaser has, prior to the 'institution of such suit' transferred the property in dispute to a person, having a right of pre-emption equal or superior to that of the plaintiff. The crucial question for the application of the legal bar contained in section 17(1) is whether the purchaser-defendant has transferred the property to such a person before the date of the institution of the suit for pre-emption. The actual date of the a institution of suit is therefore, the only relevant consideration to determine the effect of a sale by the defendant and if such a sale or transfer has in fact taken place prior to the actual date of institution, the legal embargo would be attracted, irrespective of the question whether such transfer was effected within the period of limitation for filing the suit or not. In the present case the admitted facts are that the suit was brought on 1-9-1979, but the sale in favour of Sher Zaman had already taken place on 28-7-1979. It, therefore, seems to us that a legal question of general importance as to the interpretation of section 17(1) of the N.-W.F.P. Pre-emption Act has been raised on which there appears to be no pronouncement of this Court. We, therefore, grant leave to examine this question.
Security for costs Rs.2,000. Status quo order confirmed subject to the petitioners furnishing security for mesne profits to the satisfaction of the trial Court. To be heard on the present record with liberty to the parties to file additional document if any. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.