' Haji Muhammad Yaqoob (petitioner) purchased 5/29 share out of Khasra NOS. 545/1 and 545/2 measuring 19 Kanals 9 Marlas on the basis of sale Mutation No, 609 sanctioned on 17.4-1982. The sal.: was pre-empted by Fazalur Rehman and Zarif Khan (respondents) claiming superior right of pre-emption on the grounds of co-ownership, contiguity and participation in immunities and appendages. The suit was resisted by the vendee who vehemently denied the superior right of pre- emption of the plaintiffs. The learned trial Court dismissed the suit on the ground that the plaintiffs had failed to establish their claim., In the appeal tiled by the plaintiffs the learned District Judge came to the conclusion that the plaintiffs being co-sharers in the Malkiat' land, subject-matter of the suit, had a superior right of pre-emption and, therefore, entitled to the decree prayed for. The appeal was accepted on 25-1-1984 and the case remanded to the trial Court for the determination of the remaining issues. The vendee feel* aggrieved has come in revision.
2. In support of the revision it is contended that the petitioner while purchasing the land in suit out of the 1/3rd share of the `Malkial land simultaneously purchased the occupancy rights out of the remaining 2/ 3rd share of the Khasra numbers in dispute by Mutation No, 610 attested on 17-4-1982 and therefore, he also became a co-sharer in the suit land. In the alternative it is contended that during the pendency of the suit the occupancy rights purchased by the vendee were converted into ownership by Mutation No, 628 attested on 5-2-1983, and therefore, the vendee having become a co-sharer in the sait land could defeat the pre emption suit as the plaintiffs could not maintain their superior right of pre-emption till the time of the decree. Regarding the first contention reliance is placed on Sayeeduddin Ahmed v. Haji lunus Mia (1) wherein it was held that "under the Bengal Tenancy Act 1885, the `jote' right, i. e. Raiyati right of a tenant is permanent, heritable and transferable subject to payment of rent to the landlord. Therefore, where both the pre-emptor and the vendor were Raiyats under the Bengal Tenancy Act, 1885, they had ownership in the land on account of and in respect of which pre-emption was claimed. And the pre-emptor was, therefore, entitled to get pre-emption". It may, however, be mentioned that in Sikandar v.
Sultan Muhammad (2) the aforesaid decision of the Dacca High Court came up for consideration and it was observed that : "The learned counsel appearing in support of the appeal has placed strong reliance on the judgment of a learned Single Judge of the Dacca High Court in case of Sayeeduddin Ahmed v. Haji lunus Mia PLD 1960 Dacca 416 which seems to support the view that the right of pre-emption under the Muhammadan Law is not limited to persons in full proprietary ownership of the pre- emptive property and that the word 'Milk' under the Muhammadan Law covers a wide range or ideas and is not necessarily confined to mere proprietary rights. By this decision the Dacca High Court actually held that where both the pre-emptor and vendor were Raiyats under the Bengal Tenancy Act, they had such rights in the land which entitled them to claim pre-emption and, therefore, the sale of 'jote' right which is a Raiyati right is pre-emptable."
' It was further observed that:- ' The Patna High Court has consistently held that the right of pre-emption does not extend to the transfer of Moqarari tenancy interest because the vendor must have the `Milkiat' or ownership in the property on account of which he claims the right of pre-emption. All these decisions follow the dictum of Mahmood J., in the case of Sakina Bibi v. Amiran and others I L R 10 All. 472 which has been relied upon by the High Court in its judgment under appeal."
Thus, the contention on behalf of the petitioner that by purchasing the occupancy rights out of the Khasra numbers in dispute the vendee also became a co-sharer in the 44ilkiat land cannot be maintained for the A reason that under sections 4 and 4-A of the N.-W. F. P. Tenancy Act 1950 an occupancy tenant of the land could become full owner only on payment
(1) P D 1960 Dacca 416 (2) PL D 1974 SC 11. of compensation and in case he fails to pay the compensation determined in accordance with law, the rights of occupancy are extinguished and instead the landlord becomes entitled to acquire possession on payment of the compensation to the tenant. Thus, unless the condition laid down under sections 4 and 4-A of the N.-W. F. P. Tenancy Act, 1950 are complied with by the occupancy tenant he cannot be said to have acquired proprietary interest in the land. It is not disputed that I/3rd share of the Khasra numbers in suit is Wilkie land and the remaining 2/3rd is the occupancy tenancy and the sale in dispute was effected out of the Milkiat' land wherein the pre-emptors are admittedly recorded as co-sharers.
3. Regarding the other contention reliance is placed on Behram Khan v. Sher Akbar (1) and Sher Afzal Khan v. Ghulam Mahboob (2) wherein it was held that the unequivocal language of section 16 enjoins that the pre-emptor should continue to have the preferential right till the date of decree by the trial Court. The cited cases are distinguishable because in both the cases the property was transferred in favour of a person having an equal or superior right to that of the plaintiff and thus it was held that since under section 16 of the Act the plaintiff could not maintain his subsisting right of pre-emption at the time of the decree he was not entitled to any relief. In a D. B. Judgment of this Court Abdul Majid Khan v. Shahzada Asif Jah (3) the effect of the addition of subsection (2) to section 17 of the N.-W. F. P. Pre-emption Act, 1950, by N -W. F. P. Pre-emption (W. P. Amendment) Act, 1967 (VI of 1967) was examined and it was held that the main object and intention of the addition of subsection (2) to section 17 of the N.-W. F. P. Pre-emption Act appears to conclude the controversy relating to the question of the vendee improving his status after the institution of the suit. It was observed that-- "Viewing the addition of subsection (2) to section 17 with this angle of the problem, we are of the opinion that this subsection (2) has been misplaced as to have been added to section 17. This subsection (2) should have formed part of section 16 of the N.-W. F. P. Pre-emption Act and the same is not to be reduced to a nullity by its misplaced addition to section 17 of N.-W. F. P. Pre- emption Act."
Thus, it was held that any improvement in the status of the vendee after the institution of a suit for pre-emption would not affect the right of the pre-emptor and any such improvement, otherwise than by way of inheritance, would be of no avail to the vendee to cause any damage to the superior right of the pre-emptor.
4. In this view of the matter the petitioner cannot be benefited by the fact that the occupancy rights purchased by him out of Khasra number in dispute were converted into ownership during the pendency of the suit. For these reasons the revision being without any substance is accordingly dismissed with no order as to costs.
(1) PLD 1960 (W. P.) Pesh. 1 (2) PLD 1968 Pesh. 81
(3) PLD 1970 Pesh 37