AJMAL MIAN, J.---Leave to appeal was granted in the petition for leave to consider the question, whether re-sale by a vendee to the original vendor defeats the right of a plaintiff in a suit for pre- emption.
2. The brief facts to the filing of the above appeal are that the suit land, measuring 24 kanals situate in Chak No,118/J.B. Tchsil and district Faisalabad, was sold by appellant No,1 in favour of late Hussain Ali, who was predecessor-ininterest of appellants Nos.2 to 11 through mutation No,349 sanctioned on 16-6-1973. However, subsequently appellants Nos.8 to 11 re-conveyed the land to appellant No,1 under mutation No,356 dated 4-6-1974. Appellants Nos.2 to 7 re-transferred their share of the suit land to appellant No,1 through mutation No,358 sanctioned on 1-8-1974. The respondent claiming to be a collateral of Rehmat, appellant No,1, filed a suit against Hussain All and appellants Nos.8 to 11 to claim pre-emption right in respect of the suit land effected through aforesaid mutation No,349 dated 16-6-1973. After the filing of the suit the plaint was amended, whereby appellant No,1 was impleaded as a defendant and the re-conveyance made in his favour under the aforesaid two mutations was impugned. It may be pertinent to point out that mutation No,356 re-conveying of the suit land to the appellant No,1 was effected within one year of the original sale, whereas the second re-conveyance by mutation No,358 was recorded after the period of limitation of one year for filing of pre-emption suit. The suit was resisted by the appellants and inter alia it was averred that the respondent having participated in the sale was precluded from filing of the suit. It was also pleaded that the suit land having been re-conveyed to appellant No,1 by the other appellants, the suit was not maintainable. A number of issues were framed.
However, the main contest was in respect of Issues Nos.2 and 3, which related to the maintainability of the suit and the doctrine of estoppel. The learned Civil Judge decreed the suit by judgment dated 30-3-1977 and held that the re-conveyance was effected in order to defeat the respondent's superior rights of pre-emption. He also held as a matter of fact that the respondent had superior right of pre-emption. He also recorded finding against the appellant on the question of estoppel. Being aggrieved by the above judgment and decree the appellant filed an appeal, which was dismissed by the learned Additional District Judge, Faisalabad, by a judgment dated 9- 2-1978. Against the above judgments and decrees the appellant filed R.S.A. No,152 of 1978, which was dismissed by a learned Single Judge of the Lahore High Court by his judgment dated 26-2- 1979.
3. Leave to appeal was granted to the appellant to consider the aforesaid question. The contention of the learned counsel for the appellants Mr.S.M.Zamir Zaidi was that the view found favour with the learned Judges of the Lahore Chief Court in the case of Imami (Plaintiff)-Appellant v. Allah Diya & Co.- (Defendants)-Respondents reported in (24 P.R.1918 90) and in the case of Pal Singh and another-(Defendants)-Appellants v. Jamun-(Plaintiff)-Umra and others-(Defendants)- Respondents reported in (11 P.R. 1010 24) is no longer holding the ground as in the subsequent cases contrary view has been taken. Reliance has been placed by him on the case of Mool Chand and others v. Ganga Jal and others AIR 1930 Lah. 356 (F.B.), Hayat Bakhsh v. Mansabdar Khan and others AIR 1935 Lah. 529, the case of Pandit Harbhagwan Das v. Sardar Partap Singh AIR 1938 Lah.
242 and the case of Mst.Fateh Bibi v. Ahmad Khan and 6 others PLD 1971 Lah.
171. On the other hand, Mr.R ashid Chughtai, learned counsel for the respondent, urged that the cases relied upon by Mr.Zaidi are not applicable to the present case and the aforesaid view reflected in above (11 P.R. 1919 24) and (24 P.R.1918 99) has been reiterated in a recent case by the Supreme Court of Azad Jammu and Kashmir, namely, Sherbaz v. Mst.Gulzar Begum and 9 others reported in PLD 1988 SC (AJ&K) 173.
4. It may be observed that in (24 P.R. 1918 99), it was held that the claim of a pre-emptor could not he defeated by the re-sale of the property to the original vendor even though the re-sale might have taken place before the pre-emption suit was instituted. Reliance was placed on the case reported in 134 Punjab Weekly Report 1908 (Lachho v. Mahesho), which was a Division Bench Decision, in which the earlier view reported as Kahna-(Plaintiff)-Appellant v. Dewa Singh & Kirpa Ram-(Defendants)-Respondents (62 P.R. 1879) and Shiv Charn Singh(Plaintiff)-Appellant v. The Secretary of State for India and another(Defendants)-Respondents (80 P.R. 1888) was followed. The same view was taken in 11 P.R. (1919) 24, in which the facts were that the sale took place on 22-3- 1916, whereas the re-sale was effected on 13-2-1917 and the suit for preemption was instituted on 14-2-1917. It was held by a learned Single Judge of the Lahore Chief Court that the pre-emptor's right, which accrued to him on 22-3-1916 could not have been defeated by the re-sale.
5. The question, therefore, which needs to be answered is, as to whether the above view has been dissented from in the cases relied upon by Mr.Zaidi. The first case of Mool Chand and others is of a Full Bench case of the Lahore High Court in which the following two questions were referred to the Full Bench:
(i) Does the rule of lis pendens apply when during the pendency of a preemption suit, the vendee transfers the property which is the subject-matter of litigation to a person possessing a right of pre-emption equal to that of the pre-emptor in recognition of such person's pre-emptive right?
(ii) If not, is the plaintiff entitled to share the property with the second vendee according to the rule laid down in S.17, Punjab Pre-emption Act, 1913, or should his suit be dismissed?
' Separate opinions were given by the learned Judges of the Full Bench and the majority view on above question No,1 was that the rule of lis pendens applies to pre-emption suit but it does not affect the validity of a sale effected by a vendee during the pendency of a pre-emption suit to a person possessing a right of preemption equal to that of the pre-emptor. The contrary view was taken by Dalip Singh, J. Whereas in the case of Hayat Bakhsh v. Mansabdar Khan and others a Division Bench of the Lahore High Court, inter alia held that actual acquisition by a pre-emptor is made not at the time when the property is sold to another nor at the time when the suit is instituted but at the time when the decree is made. It was also held that the preferential right that a person possesses at the time of the sale and retains it till the institution of the suit merely entitles him to move the Court in his favour but in order to succeed in the suit, he must retain the same upto the time of obtaining a decree. It was further held that where a pre-emptor files a suit on the ground of his preferential right over the vendee but the vendee during the pendency of the suit gets his defect removed and clothes himself with equal right as that of the pre-emptor, the pre-emptor has no preferential right at time of passing of decree and as such cannot succeed. In the case of Pandit Harbhagwan Das v. Sardar Partap Singh a learned Single Judge of the Lahore High Court held that if before the institution of the suit for pre-emption the original vendee transferred the property to a person claiming a right equal or superior to that of the pre-emptor, latter cannot legally oust him and that this principle is not confined to those cases only where the re-sale takes place in exercise of the pre-emptive right of the subsequent vendee. It was also held that there is no distinction between the cases where the re-sale takes place in exercise of a pre-emptive right and those where the re-sale takes place without the assertion of his right by the subsequent vendee because the effect in both cases is the same. In the last case relied upon by Mr.Zaidi, namely Mst.Fateh Bibi v. Ahmad Khan and 6 others inter alia it has been held by a Division Bench of the Lahore High Court that lis pendens doctrine does not apply to sale of immovable property by the vendee in favour of the person having right of pre-emption superior to that of pre-emptor and that re-sale by a vendee to a person having rights superior to that of pre-emptor would defeat pre-emptive right.
6. None of the above cases relied upon by the learned counsel for the appellants has any application to the instant case as in all the above cases the transfer/sale was made by the vendee in favour of a person either having superior right or equal right to that of the pre-emptor. In the present case the appellants have not been able to show that after appellant No,1 sold the suit land, he had retained any right akin to that of a person having equal or superior right of preemption.
Appellant No,1 factually sold his entire holding of the Chak in question for consideration and not a portion thereof and, therefore, he ceased to have any interest in the suit land. The appellants might have some case to argue, if they could have proved that appellant No,1 had some right in the suit land by virtue of having land contiguous to the suit land, which can he termed as superior or equal right to that of the respondent as a pre-emptor. If that would have been the case, the ratio decidendi of the case of Liaqat Hussain v. Rashid-ud-Din and others I L R 1929 Allahabad 125, which was dissented from in the aforesaid 134 Punjab Weekly Report, would have been applicable to the present case. In the above Allahabad case, the facts were that during the years 1903 and 1904 members of the family of one Shaikh Nasir-ud-Din, who were owners of a 6 pie share in Patti Nanku Singh of mann (lauhari, sold their interest in the said Patti by seven separate sale-deeds to one Abdul Hamid. Out of the above vendors two persons, Rashid-ud-Din and Mukhtar Ahmad, owned shares in the patti, which were not conveyed to Abdul Hamid, and they continued to hold these shares. They were parties to two only out of the seven sale-deeds referred to hereinabove. One Liakat Hussain, who was a co-sharer in the village of Gauhari, the vendee being a stranger, claimed pre-emption of 6 pie share in Patti Nanku Singh but the purchaser re-sold the property on 16-9- 1904 to aforesaid Rashid-ud-Din and Mukhtar Ahmad. Liakat Hussain then instituted a suit for pre- emption. Court of first instance (subordinate Judge of Allahabad) decreed the plaintiff claim holding that Rashid-ud-Din and Mukhtar Ahmad were not entitled to set up their right as co-sharer against the plaintiff because they had themselves been parties to two of the sales, which gave rise to the suit for pre-emption. On appeal, however, filed by Rashid-ud-Din and Mukhtar Ahmad the decree was set aside and the suit was dismissed. The plaintiff, thereupon, filed an appeal in the Allahabad High Court, a Division Bench of which maintained the appellate Court judgment and decree and pointed out that the object of pre-emption is to keep strangers out of the co-pacenary body of a village and so maintain its unity and that if before pre-emption proceedings are instituted the property has found its way into the hand of a co-sharer, there is no reason for allowing pre-emption which is by way of a very weak right.
7. The case relied upon by Mr.Chughtai of the Supreme Court of Azad Jammu & Kashmir seems to have laid down the correct law, in which it has been held that the right of pre-emption cannot be defeated by means of re-sale of the property in favour of the vendor. We may add that unless the vendor shows that in spite of his having sold the suit property, he had retained some right in it akin to that of a person having equal or superior right to that of the pre-emptor, a resale in his favour cannot defeat the right of the pre-emptor.
' The above appeal has no merits and is, therefore, dismissed with no order as to costs.