MIAN BURHANUDDIN KHAN, J.--As similar point of law is involved in both the aforementioned appeals, this order will, therefore, dispose of Civil Appeals Nos. 16/P and 24/P of 1979.
2. Appeal No. 16/P/1979 is directed against the judgment of the Peshawar High Court, dated 4-3- 1977 passed in Civil Revision No. 179/1972. It arises out of the following circumstances.
3. Appellant herein filed a suit against respondent Noorul Haq in the Court of Civil Judge, D.I. Khan, for pre-emption of the suit land measuring 103 Kanals and 18 Marlas on the ground that his land was contiguous to the suit land as also that he was participator in the immunities and appendages. Noorul Haq sold the suit land to respondent No. 2 Habibullah in recognition of his superior right of pre-emption. After Habibullah was impleaded in the suit as defendant the appellant herein claimed against him also his superior right of pre-emption. But since in the written statement filed by them, the said respondents denied his claim the learned trial Court proceeded to frame as many as 11 issues which need not be reproduced. After recording the evidence of the parties the learned trial Court dismissed the suit of the appellant herein, who, having failed in his appeal in the Court of the District Judge, D.I. Khan and in the High Court, filed a petition in this Court seeking leave to appeal against the judgment of the learned High Court.
4. In Peshawar High Court the only question argued by the learned counsel for the parties was "whether the pre-emption suit of the appellant herein could be defeated on account of the sale in favour of Habibullah having an equal or superior pre-emptive right and will it non-suit the pre- emptor when the sale is made after the period of limitation". In support of his contention the learned counsel for the appellant herein had argued in that Court that since respondent Noorul Haq had sold the suit property to respondent Habibullah, after the prescribed period of limitation, the said transaction would be hit by the doctrine of lis pendens and in that behalf relied on AIR 1925 Lah. 614 and A 1 R 1946 Leh.
142. In repelling the said contention, however, the learned High Court Judge took the view that "the contention of the learned counsel would have force, had there not been a latest authority of that Court reported as PLD 1970 Pesh. 136 on which the learned counsel for the respondent had relied. In view of this authority it is clear that during the pendency of the suit, a vendee can transfer the suit land, by way of sale to another person and he cannot be non-suited by the pre-emptor if his rights were found to be superior". Leave was granted by this Court vide order, dated 14-10-1979 inter alia on the ground that by going through the judgment of the High Court, the said various enactments namely the North-West Frontier Province Pre-emption Act, 1950 as well as the Amending Act VIII of 1972 and the judgment reported in PLD 1970 Pesh. 136 (supra) this Court was of the view that the various contentions urged by the learned counsel for the appellant herein, which do seem to involve the questions of public importance, require the consideration by this Court.
5. Learned counsel contended that the judgments and decrees of the trial and appellate Courts as well as the judgment of the revisional Court are against law and without jurisdiction due to their being in favour of a party, upholding its right of pre-emption who had allowed it to be extinguished by lapse of the; that despite the N.-W-.F.P. Act VIII of 1972 being applicable to the pending suits and appeals and the suits instituted after the Act and to the proceedings thereafter, thus excluding by implication, its application to the revision petitions pending at the the of the Act coming into force, the transfer in favour of respondent No. 2 could not legally non-suit the appellant herein for the reason that even if the former had a right of pre-emption on the date of sale he had lost it by lapse of the on the date when he viz. Respondent No. 2 acquired the disputed land from the first vendee, as he had no subsisting right on the date when he acquired the property and, therefore, the appellant herein cannot be said to be a person, within the meaning of section 16 of N.-W.F.P Pre- emption Act, to have no subsisting right on the date of .The decree; that if the second vendee (respondent No. 2) had instituted a suit on the date on which he acquired the property, he could neither succeed against the first vendee nor the rival pre-emptor (the appellant herein). Therefore, he cannot be deemed, within the meaning of section 16 N.-W.F.P. Pre--emption Act read with section 31 of the said Act and section 3 of the Limitation Act, to be a person acquiring the land in dispute with preferential right as contemplated by section 17 of the N.-W.F.P. Pre--emption Act; that albeit Usman Ali Shah, 3 correctly interpreted the authority reported as F L D 1970 Pesh. 136 according to which the Law of Limitation will not stand in the way of a claimant of preferential right of pre-emption in view of section 16 of the N.-W.F.P. Pre-emption Act even though he acquires the pre-empted land after the period of limitation, the authority, the learned counsel submitted, does not make correct exposition of the provisions of the laws applicable to the case of such a transaction. And only takes a partial view thereof as is also clear from the preceding ground.
6. We have examined the contentions of the learned counsel. In Civil Appeal No. 14/P/1972 (unreported) it was held that after the amendment of section 16 of N.-W.F.P. Pre-emption Act, 1950 b~, N.-W.F.P. Act VIII of 1972 which reads as follows:-- "1. (1) This Act may be called the N.-W.F.P. Pre-emption (Amendment) Act, 1972.
(2) It shall apply to all suits or appeals pending on, or insti--tuted after the commencement of the Act.
2. After section 16 of the N.-W.F.P. Pre-emption Act, 1950 the following explanation shall be added, namely:--- Explanation-- For the purposes of this section, no pre-emptor---plaintiff shall be deemed to have lost a subsisting right of pre--emption by reason of the fact that the vendee-defendant, has, 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."
"The second respondent in the instant case is the vendee/ defendant within the meaning of this explanation, and as he sold the land in the suit to the first respondent 'after the expiry of the period of limitation provided for a suit for pre-emption' the instant case falls directly under this explanation, which is intended to be retrospective. Therefore, by virtue of the deeming clause in the explanation the pre-emptor had not lost his right of pre-emption despite the second respondent's re-sale to the first respondent and despite the fact that respondent might have an equal or better right of pre-emption than the pre-emptor. And as such the appellants are the legal heirs of the pre-emptor; this means that the appeal must be allowed. "
7. In Muhammad Mujtaba v. Ghulam Ali and others 1980 SCMR 7 it has been observed by this Court.
"This position is further clear from the 'Explanation' which was added in section 16 of the N.-W.F.P.
Pre-emption Act (XIV of 1950) by the N.-W.F.P. Pre-emption (Amendment) Act VIII of 1972, published in Extraordinary, Government Gazette of N.-W.F.P., dated 27-6-1972 (page 870) section 1(2) of the Amending Act laid down that 'it shall apply to all suits or appeals pending on, or instituted after, the commencement of this Act." The 'Explanation' aforesaid laid down that 'for the purposes of this section, no pre-emptor-plaintiff shall be deemed to have lost a subsisting right of pre-emption by reason of the fact that the vendee-defendant has 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 to or superior to that of the plaintiff. When confronted with this situation learned counsel for the petitioner submitted nothing in reply to the general principle of lis pendens mentioned above but simply argued that the word 'appeal' in the above 'Explanation' meant only first appeal and not the second appeal with the result that the law contained in that 'Explanation' could not be given effect to in the second appeal before the High Court. There is no such reservation or limitation attached to the word 'appeal' as used in the aforesaid Explanation and as such it is not possible to add any such string to that word as is being suggested by the learned counsel."
The same view has been taken by this Court in Akram v. Mst. Sakina Begum and another PLD 1984 SC 334.
"In addition to the afore-discussed aspects of the case it needs to be remarked that the explanation to section 16 makes a negative provision to the effect that no suit for pre-emption shall fail where the defendant vendee transfers the property after the period of limitation, to a person having a right of pre-emption equal of superior to that of the plaintiff. In other words if it is within the period of limitation, then the suit shall fail. Admittedly Mst. Sakina having been transferred the land which was the subject-matter of the second sale, within the period of limitation, she could resist appellant's claim of pre-emption on the basis of this statutory bar. And this bar does admit of any exception based on any principle including that of substitution. The exception mentioned in subsection (2) of section 17 it has been admitted before us, is not attracted to the case regarding the second sale to which this appeal relates, because it refers to the improvement made in the status of the original vendee defendant and not to Mst. Sakina, the transferee from him."
It is evident that Mst. Salma Begum the original owner of the suit land, sold the same to Noorul Haq vide Mutation No.1307 attested on 23-6-1967. During the pendency of the suit Noorul Haq sold the suit land to Habibullah in recognition of his superior right of pre-emption after the period of limitation. We, therefore, allow this appeal with no order as to costs, and decree the suit in favour of the appellant as prayed for.
8. In Civil Appeal No. 24/P of 1979 the dispute relates to agricultural property situate in Tehsil Abbottabad owned by Farooq Din Saleh who sold it to respondents 1 to 3 vide Mutation No.781 attested on 24-4-1968. In order to pre-empt the said sale transaction, the appellant filed a suit against the respondents in the Court of Civil Judge, Haripur. During the pendency of the suit, respondents Nos. 1 to 3 sold the suit land to respondent No. 4 vide Mutation, dated 9-6-1970. The appellant impleaded respondent No.4 as defendant to the suit. The learned trial Court dismissed the suit of the appellant per order, dated 20-5-1971. Thereafter first and second appeals met the same fate in the Court of District Judge Abbottabad and in the High Court. Appellant then filed petition for leave to appeal against the judgment of the Peshawar High Court and leave was granted by this Court vide order, dated 24-10-1979 on similar grounds as contained in the leave granting order, dated 14-10-1979 in C.P.S.L.A. No. 27/P of 1977 (Civil Appeal No. 16 of 1979). Obviously the transfer in favour of the second vendee was beyond the period of limitation and thus the right of the appellant could not be defeated.
9. Learned counsel contended that in view of the explanation added to section 16 of the N.-W.F.P.
Pre-emption Act by the N.-W.F.P. Act VIII of 1972 the transfer of the suit land in favour of Sher Ahmad Khan, defendant /respondent No. 4 i.e. The subsequent vendee, will not affect the superior right of pre-emption of the plaintiff /appellant and that the principle of pendente lite was also applicable to the transfer of the land in dispute to Sher Ahmad Khan during the pendency of the pre-emption suit of the plaintiff /appellant and specially when the period of limitation had expired.
10. As the point has already been decided in the to aforementioned cases i.e. Muhammad Mujtaba v. Ghulam Ali and others and Akram v. Mst. Sakina Begum and another we allow this appeal; decide issue No. 2 in favour of the appellant and remand the case to the High Court for decision afresh on the remaining issues. No order as to costs.