1. JAVID IQBAL J.-- Briefly the facts are that one Ahmad Khan sold land measuring 82 Kanals 14 Marlas to Muhammad Khan respondent on 14th March, 1969. Later on Muhammad Khan respondent-vendee exchanged the said land with Mst. Zaitoon respondent daughter of Ahmad Khan vendor on 21st August, 1969. The present appellant brought a suit to pre-empt the first mentioned land claiming himself to be collateral of Ahmad Khan vendor as against Muhammad Khan respondent-vendee and also disputing the sale price. He likewise assailed the genuineness of the exchange which according to him was a disguise with the intention to defeat his right. The trial Court dismissed the suit holding that the exchange was genuine and that it was a device permitted under the law to defeat pre-emption. But in the first appeal the District Judge took the opposite view in regard to the exchange holding that it was not a device but a disguise. Thus he accepted the appeal of the present appellant and allowed the suit for pre-emption. The judgment of the District Judge was challenged by Mst. Zaitoon respondent in which she, apart from the present appellant, also impleaded Muhammad Khan vendee as respondent. The RSA was heard by learned Single Judge of the Lahore High Court, Rawalpindi Bench, who vide his judgment dated 4th June, 1984 accepted the appeal and setting aside the judgment and decree of the District Judge restored the judgment and decree of the trial Court. His finding was that Muhammad Khan respondent-vendee had employed the device of exchange much earlier than the present appellant brought the suit and that there was no evidence on the record of the return of the said property to Muhammad Khan respondent-vendee by Ahmad Khan vendor's daughter Mst. Zaitoon respondent. Consequently the exchange was held to be in order and the appellant's suit for pre- emption was dismissed also on the ground that he had no better right as against Mst. Zaitoon respondent, Ahmad Khan's daughter. Against the aforesaid Judgment leave to appeal was granted in order to consider whether a sham and fictitious transfer of property pre-empted out of Court by a vendee in favour of a person having equal right of pre-emption can defeat a pre- emptor's suit; and also whether in view of the imperative provision of section 100 of the Code of Civil Procedure, the finding of fact recorded by the District Judge could be legally interfered with by the High Court in a regular second appeal.
2. At the time of the hearing of the appeal it was brought to our notice by the learned counsel for Mst.
3. Zaitoon respondent through Civil Miscellaneous Petition No.59-R of 1987 that the present appellant had preferred his appeal in this Court in 1984 as against Muhammad Khan respondent No.1 and Mst. Zaitoon respondent No.2. In the said appeal Muhammad Khan respondent No.1 was shown as a person who was alive whereas the said Muhammad Khan respondent had died as far back as 12th February 1973 i.e. About 11 years before the filing of the petition for leave to appeal and more than 14 years from today. The death certificate of Muhammad Khan respondent had also been placed on the record. Thus according to the learned counsel the very filing of the present appeal against Muhammad Khan respondent was incompetent as the present appellant had not taken any step to bring the legal representatives of the deceased respondent No.1 on record after his death within time. It was further submitted that the appeal was liable to be dismissed on this ground alone.
4. This judgment disposes of both the matters, namely, Civil Miscellaneous Petition No.59-R of 1987 and Civil Appeal No.17 of 1986. In reply to the preliminary objection of the learned counsel for Mst.
5. Zaitoon respondent raised in Civil Miscellaneous Petition No.59-R of 1987, learned counsel for the appellant submitted that he has placed on record an application for impleading legal representatives of Muhammad Khan respondent dated 28th March, 1987 alongwith an application for the condonation of delay. He argued that Muhammad Khan respondent had also been impleaded as such by Mst. Zaitoon respondent when she had filed regular second appeal in the High Court. The said regular second appeal was decided on 4th June 1984 and in the course of the pendency of the regular second appeal Muhammad Khan respondent had died. Nevertheless she did not implead legal representatives of Muhammad Khan deceased respondent throughout that period and that therefore it was she who had obtained a judgment and decree against a dead person. It was submitted that the present appellant learnt about the death of Muhammad Khan respondent only through the Civil Miscellaneous Petition No.59-R of 1987 of Mst. Zaitoon respondent and after ascertaining the names of his legal representatives without any delay whatsoever he had filed an application for impleading them as such. Learned counsel further submitted that the inability on the part of the appellant to implead legal representatives of Muhammad Khan deceased respondent was not due to any negligence, but he only impleaded all the parties who had appeared as such on the High Court record. He prayed that the delay in filing the said application be condoned and that the application in question be allowed.
6. Admittedly Muhammad Khan vendee-respondent had died on 12th February 1973. The present appellant filed petition for leave to appeal against the High Court judgment dated 4th June 1984 on 16th July, 1984. Leave to appeal was granted on 11th January 1986. Application for impleading legal representatives of Muhammad Khan deceased respondent was moved by the learned counsel for the appellant on 28th March, 1987. The argument of the learned counsel for the appellant to the effect that Muhammad Khan respondent had been impleaded as such even in regular second appeal preferred by Mst. Zaitoon respondent and that he had died while the matter was pending in the High Court and that in fact it was she who had obtained judgment and decree against a dead person, is of no avail to him, because the main thrust of the pre-emption case of the appellant was against Muhammad Khan respondent-vendee and not Mst. Zaitoon respondent. Learned counsel for the appellant had also attempted to argue that Muhammad Khan deceased respondent had transferred his interest through exchange to Mst. Zaitoon respondent and therefore he was no more relevant so far as the appellant was concerned. Again here we do not agree with the learned counsel, for, the transaction between Muhammad Khan deceased respondent and Mat. Zaitoon respondent was that of an exchange which had taken place long before the present appellant had filed his suit for pre-emption involving the first sale made by Ahmad Khan vendor in favour of Muhammad Khan deceased respondent as vendee. As for argument of the learned counsel that he had impleaded in the present appeal all the parties who had appeared as such on the High Court record, that too has no force. Obviously the appellant knew that Muhammad Khan respondent had died not only because the present appellant resided in the same village but was also his collateral. According to the learned counsel for the appellant himself, he had participated in the funeral of Muhammad Khan deceased respondent. Nevertheless he did not inform the learned counsel about his demise at the time of the filing of the petition for leave to appeal. At this belated stage, therefore, the legal representatives of Muhammad Khan deceased respondent cannot be impleaded and the delay cannot be condoned.
7. The result is that Civil Appeal No. 17 of 1986 is hereby dismissed as not properly constituted, whereas Civil Miscellaneous Petition No.59-R of 1987 is allowed. However there shall be no order as to costs.