Abdul Qayum Khan Babar defendant-respondent herein purchased 3 kanals of land bearing Khata No.347/701, khasra No.1387/845 situated in village Jhangi, Tehsil and District Abbottabad for a consideration of Rs.50,000 vide Mutation No.3387 attested on 13-11-1975.
2. Arshad Iqbal the plaintiff-petitioner herein, in exercise of his right of pre-emption, instituted a suit on the basis of co-sharer-ship in the joint "khata" as also on the basis of contiguity and participation in appendages and immunities. It was also alleged that the sale amount, actually fixed and paid, was hardly Rs.5,000 but inflated amount of Rs.50,000 was recorded in the mutation so as to defeat the pre-emptive right of the plaintiff.
3. The respondent contested the suit. Finding the parties at variance on a number of issues arising out of the pleadings of the parties, the learned Civil Judge Ist Class, Abbottabad recorded such evidence as was produced before him in support of their respective pleadings and dismissed the suit vide his judgment dated 28-5-1983.
4:Aggrieved there from an appeal was preferred before the learned Additional District Judge, Abbottabad, who after hearing the parties, and finding no force in the same, dismissed the appeal vide his judgment dated 16-4-1984.
5. In the foregoing circumstances, the revisional jurisdiction of this Court was invoked whereby the judgments of both the learned lower Courts were called into question. At the preliminary hearing of this revision petition on 25-1-1986 my brother Inayat Elahi Khan, J admitted it vide his note of even date.
6. During the subsequent proceedings of serving the respondent, it was on 5-3-1989, that the petitioner was reported to have died as is evident from the note of the Additional Registrar dated 5-3-1989 and it was ordered that the notices be issue to his legal representatives as per list attached with the file of lower Courts, presumably the one attached with the plaint.
7. After the service of -the legal representatives of the petitioner was finalized, the case was put up for full hearing on 28-2-1990 before my brother Mohammad Bashir Jehangiri, J. And the learned counsel for the respondent Mr. Abdullah Jan Mirza raised an objection to the effect that the right of pre-emption being uninheritable, the death of the pre-emptor would disentitle his legal representatives to continue with the cause and in support thereof .He placed reliance on a decision in the case of Azizur Rehman's v. Mohammad Nawaz reported as P L' D 1988 SC 384. The learned counsel for the petitioner sought time to make a suitable reply to the objection thus raised.
8. I have heard Kh. Abdur Rashid Advocate learned counsel for the petitioner and Mr. Abdullah Jan Mirza Advocate learned counsel for the respondent at length on the point as to whether the right of pre-emption is heritable or does it extinguish with the death of the pre-emptor.
9. It is contended on behalf of the petitioner that since the right of pre--emption passes with the land, therefore, the person who inherits the land should also be able to exercise that right, meaning thereby that it was a heritable right. He also argued that the custom, as proved, gives the right to pre-empt as an incident to co-ownership in case the pre-emptor derived title by inheritance. He, therefore, urged that the survivor of the petitioner, being legal heir of the deceased pre-emptor, legitimately enters into the shoes of the pre-emptor and inherits the right of pre-emption as well and that the revision petition cannot be held incompetent only for the reason that the pre-emptor has died:
10. As against this, the learned counsel for the respondent vehemently argued that for a successful exercise of right of pre-emption, it is necessary that the pre-emptor must show that he had a superior right to pre-empt which he had at the date of the sale and which continued to remain superior at all the relevant subsequent times, namely, at the time of the institution as also at the time of grant of the decree; otherwise his suit must fail. On this analogy, the learned counsel for the respondent stressed that the legal heirs of the petitioner, having no such right on the date of the sale of the suit land, cannot claim right of pre--emption under the law nor could they improve their right after the sale by inheritance as the cause of action had already come into existence and the subsequent qualification by inheritance could not vest them with superior status after the accrual of cause of action. He, therefore, urged that this petition has become infructuous in view of the fact that with the death of the pre-emptor petitioner the right of pre-emption no more exists against the respondent.
11. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas on the point raised.
12. ' The proposition which emerges out of the argument and counter--argument of the learned counsel for the parties appears, to me is that while the right of pre-emption runs with the land and is not personal initially, it turns out to be personal for the purposes of its enforceability in a Court of law, right from the time of the sale of the property till the date of decree in favour of the pre- emptor. In other words, the right opmtomies to be personal to a pre-emptor until a decree is passed in his favour and, during this interregnum, this right is neither transferable nor heritable. In such a situation if the pre-emptor dies before obtaining a decree in his favour in the trial Court or as the case may be, the appellate or revisional Court, his right of pre-emption shall remain exclusively personal and shall not survive to his heirs. But no sooner is a decree passed in favour of the pre-emptor than the right becomes a proprietary one and capable not only to be transferred but to be inherited as well.
13. Viewed in the perspective of the foregoing discourse, I have no hesitation in holding that the objection raised by the learned counsel for the respondent has force in it and accordingly prevails.
14. Thus reverting to the factual aspect of the case in hand, undisputedly there has been no decree passed in favour of the plaintiff-petitioner till the revisional stage of the litigation during which he died leaving no such right (of A pre-emption) as could under the law, be transferred to, or inherited by, his legal representatives. This being so, the right of pre-emption stood extinguished with the death of Arshad Iqbal, the petitioner herein, and, with this, his legal heirs, though brought on the record after his death, are no more left in a position to press the revision petition into service.
15 For the foregoing reason, this revision petition, having become infructuous, is, ex consequenti, dismissed with no order as to costs.