1. ' This second appeal at the instance of Lal son of Mowaz appellant challenges the affirming judgment and decree dated 7-1-1979 of learned District Judge, Attock, passed in Civil Appeal No,192. Facts leading to the present litigation, to be briefly stated, are:--On 1-9-1975, rvlst. Farzana Begum and some others sold 16 kanals, 13 marlas of land comprised in Khasra No,1386 situate at Mauza Langar, Tehsil Fateh Jang to Lal son of Mowaz at the sale price of Rs,4,162.50. Mst. Ghulam Elahi wife of Sardar Muhammad Akram Khan alongwith Sardar Muhammad lqbal Khan sued to pre-empt this sale on the ground of their near relationship to the vendors. Vendee resisted the suit by denying superior right asserted against him and pleaded that suit was barred by limitation and that he had purchased the land in suit for Rs,4,162.50 which price was fixed in good faith and actually paid to the ex-owners. Learned trial Court formulated necessary issues requiring decision in Vernacular, recorded evidence of the rival parties and upon its consideration on 25-4-1978 found that excepting Mst. Farzana Begum vendor, relationship of .Mst. Ghulam Elahi plaintiff No,1 to the vendors was proved and as such, she was possessed of a preferential right; that price paid for the land in dispute was Rs,4,162.50; that the suit was not barred by limitation as the objection raised in this behalf by the defendant was abandoned by his Advocate on 24-4-1978. Upon these conclusions, suit was partly decreed in favour of the plaintiff No,1 upon her paying Rs,2,775 to the vendee by or before 25-5-1978, failing which her pre-emption suit was ordered to stand dismissed.
2. It may be noted that Sardar Muhammad lqbal Khan plaintiff No,2 had withdrawn from the suit leaving plaintiff No,1 alone in the field. Both the parties felt aggrieved by the decision of the trial Court and filed separate appeals in the District Court. These were taken up together and were dismissed by a common order on 7-1-1979 by learned District Judge, Attock. Appellant Mst. Ghulam Elahi had applied for leave to produce additional evidence to establish her preferential right in regard to 1/3rd share of the land, relief whereof was declined to her by the trial Court. Learned Appellate Court declined to admit additional evidence and dismissed the application for additional evidence and upon existing records found against her holding that her right did not extend to the land sold by Mst. Farzana Begum. As regards appeal filed by Lal, it was held that 'as soon as a tenant purchases the land, he loses his such status as a tenant. Hence Lal appellant cannot defeat the suit of Mst. Ghulam Elahi". Mst. Ghulam Elahi appeared to have felt content with the judgment given in appeal but Lal was dissatisfied and preferred an appeal to this Court, ' There is not much oral evidence in this case. On behalf of plaintiff, Sardar Muhammad Iqbal Khan co-plaintiff appeared at the trial and recorded his statement. He deposed that vendors were his near relations as also of plaintiff No,1, namely, Mst. Ghulam Elahi. In cross-examination, he denied the suggestion that the defendant occupied the land-in-dispute as non-occupancy tenant. Lal defendant as DW-1, in his oral statement, stated that the land purchased by him was already comprised in his tenancy and denied that plaintiffs were related to the vendors. This was all the oral evidence led in the case. Pedigree-table Ext.P-1 proves plaintiff No,1's relationship to the vendors except Mst. Farzana Begum. Copy of the Jamabandi pertaining to the land in dispute was not placed on record by either party. However, defendant filed an extract from crops inspection register Ext.D-2. It manifestly shows that Khasra No,1386 was in cultivatory possession of Lal defendant as its non-occupancy tenant paying 'batai' rent to the owner-landlords. Ext.D-2 covers crops Kharif 1972 to Rabi 1976. At the hearing, it was agreed by Malik Muhammad Jaffar, learned counsel appearing for the respondent that land purchased by Lal was in his actual cultivation as non-occupancy tenant since before the impugned sale. In this view, only point falling for determination is whether plaintiff as presumptive heir of the vendors could oust the vendee and get the decree. Section 15 of Punjab Pre-emption Act, 1913 enumerates qualifications for pre- empting sale of agricultural land and village immovable property. First, in the line, are persons who in the event of contemplated decease of the vendor are his legal heirs. Rule governing their inter se entitlement is order of succession. By para. 25 of Land Reforms Regulation, 1972 (M.L.R. No,115) a cultivating tenant of the land was given first right of pre-emption in preference to all others in Section 15 of Punjab Pre-emption Act. Para 25(3) clause (d) of Land Reforms A Regulation reads:- "subject to other provisions of this Regulation, a tenant shall have the first right of pre-emption in respect of the land comprised in tenancy". In this new dispensation, tenant ranked higher even to the legal heirs of the vendor. Therefore, there can be no real dispute about the proposition that in case of sale of land cultivated by tenant, his right of pre-emption was superior to all. Does he forfeit this right by purchasing the land already comprised in his tenancy and also whether his status either as a plaintiff-pre-emptor or a defendant-vendee based on similar qualification makes any material difference in this behalf. Having regard to the law of pre-emption and decided cases, it is clear to me that no such result can follow. Preference is essence of pre-emption right. Right of tenant to pre-empt sale of agricultural land is not denied. There are two ways of enforcing this right, one is to enforce it through a Court of law and the other is to enforce it privately out of Court.
3. In case, he purchases agricultural land and a suit for pre-emption is filed against him by a inferior pre-emptor, no law says that he cannot defend his title and say to the other that he had a better right to get the land. Theory of merger is not in point. In saying so, I am supported by two decisions of this Court reported as 1981 CLC 1696 and 1980 CLC 1012. Speaking with respect, these enunciate a correct statement of law with which I respectfully agree. Looked at thus, view of law taken by the learned Judge below cannot be upheld. This brings me to the last point and that is whether the pronouncements of Supreme Court in Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360, Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287, Muhammad Shoaib and others v. Member (Revenue and others PLD 1988 SC 355, Ghulam Qadir v. Nawab Din PLD 1988 SC 701 in any manner affect the parties' rights in the case. In case of Malik Said Kamal Shah, Supreme Court ruled that pre-emption right given to a tenant was repugnant to Islamic injunctions. This decision took effect from 31-7-1986. In case of gardar Ali, decrees passed prior to 31-7-1986 were saved. However, it was held that after this date, no fresh decree could be made on the grounds found contrary to Islamic injunctions. Questions formulated in case of Sardar All and others do not cover the point before me. As said above, preference is essence of pre-emption. Section 4 defines pre-emption as right to acquire property in preference to others. All are agreed that it is necessary for a pre-emptor to be possessed of superior qualifications at the date of sale and, this superiority, he must maintain till the date of decision by the trial Court subject to certain exceptions which are not relevant for the present purpose. At the date of sale, defendant had the first right of pre-emption and plaintiff's right was inferior to him. In my opinion, declaration of law in Malik Said Kemal Shah does not apply retrospectively to nullify the obvious superiority of the defendant at the time of impugned sale which took place on 1-9-1975. As the pre-emptor had no preference at the time of the impugned sale, no decree could be passed in her favour. In this view, impugned judgments and decrees passed by the learned Courts below are set aside and suit for pre-emption brought by respondent is ordered to be dismissed leaving the parties to bear their own costs.