SHAFIUR RAHMAN, J.--The vendee/defendant was granted leave to appeal against the judgment of the Peshawar High Court dated 21-5-1986 whereby the suit of the pre-emptor was decreed for the first time not extending to the vendee the benefit of Explanation added to Section 16 read with subsection (1) of section 17 of the North-West Frontier Province Pre-emption Act, 1950 (hereinafter referred to as the Act) notwithstanding the fact that the vendee had entered the arena within the period of limitation and before the institution of the suit.
2. On 14-9-1981, Nawaz Khan (respondent No3) the original owner of the disputed property sold it by a registered deed to Sayed Gul Rehman Shah (respondent No,2). On 6-1-1982, Sayed Gul Rehman Shah (the vendee) resold the same property to Nawaz Khan (respondent No,3 the original owner) by a registered deed. Thereafter, on 10th of March, 1982, a report was lodged on behalf of the 'appellant (Guldar Khan) that Nawaz Khan had sold the same property to him which was entered in the register of mutations on 19-3-1982 and the sale was attested by the Revenue Officer on 16-5- 1982. In the meantime, the pre-emptor filed a suit on 6th of April, 1982 seeking a preferential right of preemption against Sayed Gul Rehman Shah, the first vendee. On disclosure of the subsequent transactions, the appellant was also impleaded and the contest took place with regard to the superiority of the right of pre-emption. The superior right of pre-emption of the plaintiff/respondent No,1 was recognised as against Sayed Gul Rehman Shah (respondent No,2) but not against the appellant, observing as hereunder:-- "The first transaction took place within one year. The learned counsel for the contesting defendants has referred PLD 1971 Lahore 171, which has held that "if a person possessing superior right of pre- emption to the preemptor instead of buying the suit property privately brings a pre-emption suit, his suit will succeed and the pre-emptor will be non-suited.
' Consequently there is no cogent reason why the same result should not follow in case such a person instead of bringing a pre-emption suit buys the suit property out of the Court from the first vendee. It is also well-established that a vendee may sell to a person who has an equal right with the pre-emptor or who has a superior right to the pre-emptor, ante litem, so as to defeat the pre- emptor's claim provided the transaction is genuine. This being so, it will be inavoidable to permit a pre-emptor to defeat a person who has a superior right of pre-emption and whom the suit property is re-sold within the period of limitation. Simply because the pre-emptor rushes to Court immediately after a sale is effected". I respectfully agree with this authority and hold that the plaintiff has got no superior right. The issue is decided in the negative."
' Hence, the trial Court dismissed the suit.
3. On appeal, the District Judge affirmed the judgment and decree of the trial Court dismissing the appeal by observing as hereunder:-- "Only two points have been argued before me by the appellant-No,1 the transfer in favour of defendant No,3 is not legal and No,2, no issue has been framed to the effect that the alleged transfer in favour of defendant No,3 is fictitious and thus not binding on the rights of the plaintiff. As far as the first point is concerned the property has been transferred to a person during the limitation who is a co-sharer and against whom the plaintiff has got no superior right of pre- emption. Moreover there is no bar on such transfer as it is a legitimate means to avoid pre- emption. All the transactions are within time and regarding the second point of framing the issues the plaintiff has not objected at the time when the issues were framed and uptil the time of the disposal of the suit, so this plea at this stage has got no force. As the appeal does not merit, it is hereby dismissed with no orders as to costs."
A Revision was filed against this decision. The learned Judge of the High Court did not recognise the very resale made in favour of the vendor Nawaz Khan or the sale by him in favour of the appellant by observing as hereunder:-- "To appreciate the contention raised it may be pointed out that apart from the pleadings of the parties and the copies of registered sale deeds and the Revenue Record placed on file there is no other evidence to prove resale of the suit land to the original vendor and of its further sale in favour of defendant No,3. Plaintiff has in his original plaint challenged the resale in favour of the vendor to be fictitious and of no legal effect on his right of pre-emption. Thereafter in his amended plaint, in which defendant No,3 was impleaded as a party, the plaintiff challenged the sale made in his favour as "Benami" and fictitious. Though these transfers were seriously challenged and an issue No,7 was specially framed to this effect excepting the solitary statement of defendant No,3, no other evidence has been led in the case in proof of the subsequent transfers made after the sale in question. In this case plaintiff has preempted the first sale made in favour of defendant No,1 within the statutory period of one year. Under the law, resale of the land to the original vendor cannot be set up as a plea for defeating the plaintiff's suit for possession under section 16 of the N.-W.F.P. Pre- emption Act as transfer made in his favour can neither be termed to have been made in recognition of his superior right of pre-emption nor the sale made by such transferee in favour of defendant No,3 would be deemed to be the transfer by the vendee in favour of a person having equal or superior right to that of the plaintiff pre-emptor. In the absence of direct link or contract of sale between the original vendee and defendant No,3 the provision of law referred to above would not be attracted, if the plaintiff is proved to have a superior right of pre-emption against the original vendee."
' The Revision was accepted and the pre-emption suit decreed by the High Court observing as hereunder:- "For the reason stated above and for the additional reason that no evidence has been led by the defendants in proof of the transactions of resale to the vendor and of transfer in favour of defendant No,3, the finding of the Courts below on issue No,6, which is based on no evidence and misapplied of law are unsustainable. Consequently this revision petition is accepted, the judgment and decree of both the Courts below are set aside and the plaintiff's suit is decreed as prayed for in the plaint on payment of Rs,19,788.69. The parties are, however, left to bear their own costs."
5. The learned counsel for the appellant has contended that the resale in favour of Nawaz Khan was proved by the registered sale deed which was not repudiated by any better evidence and so was the sale in favour of the appellant by the statement of Patwari and the reports made and mutations attested as appearing in the Revenue Record. The learned counsel for the appellant has heavily relied on a decision of this Court in Sifatullah Khan and others v. Mrs. M.U. Khattak and others 1985 SCMR 1425 where ultimately the property had been transferred to one who had an equal or a superior right of pre-emption and that was done within the period of limitation though in the interregnum. The transfer had taken place to others who had no such right of pre-emption at all.
6. The learned counsel for the respondent No,1 has, on the other hand, supported the judgment of the High Court and proceeded to further contend that the transfer in favour of the appellant, if at all held made, would be after the institution of the suit. The suit was instituted on 6-2-1982 and the mutation was attested on 16-5-1982. Reliance is placed on Muhammad Najeeb v. Mst. Talat Shahnaz and others 1989 SCMR 119.
7. A survey of the three judgments now under consideration shows that the trial Court and the first appellate Court determined the question of fact in favour of the appellant. They found established the resale in favour of the vendor which was given effect to by the registered deed and then another sale by the original vendor to the appellant given effect to by a report to the Patwari and attestation of the mutation. Surprisingly, the High Court in Civil Revision upset this concurrent finding of fact and this was done very casually by observing as hereunder:-- "Though these transfers were seriously challenged and an issue No,7 was specially framed to this effect excepting the solitary statement of defendant No,3, no other evidence has been led in the case in proof of the subsequent transfers made after the sale in question."
8. In upsetting this finding of fact, the statement of the Patwari, the report recorded in the Roznamcha, the entry of the transaction in the mutation register and the attestation of the mutation which all had come on record as evidence, was ignored. This is not a fair reading of the record and the evidence.
9. Another legal error in the judgment of the High Court, if we may say so with respect, is that the finding recorded as hereunder:- "In the absence of direct link or contract of sale between the original vendee and defendant No,3 the provision of law referred to above would not be attracted, if the plaintiff is proved to have a superior right of preemption against the original vendee."
This view, legally, is not in conformity with the law law laid down by this Court in the case of Sifatullah Khan and others, where the sale to an intermediary vendee was held to be not necessarily in recognition of superior right of pre-emption as none was possessed by him; if and only if the ultimate legal vendee against whom the pre-emptor was to contest, happened to have a superior right of pre-emption.
10. As regards the contention of the learned counsel for the respondent that the sale in favour of the appellant should have been taken on the strength of the decision in the case of Muhammad Najeeb to have been finalized when the mutation was attested on 16-5-1982 after the institution of the suit and not prior to it, is not very consequential. The decision to which reference has been made is relatable to limitation provision in the law of pre-emption and it expressly mentions the attestation of the mutation as the starting point of limitation. Therefore, what precedes the attestation of the mutation is not at all relevant. Besides, in a case of sale to a person having a superior right of pre-emption, such attestation is not relevant but the date when the sale in fact takes place irrespective of the date of attestation. Independently of it, Explanation to section 16 of the Act would permit such a sale within the period of limitation and the sale in favour of the appellant was in any case within the period of limitation, even if it be taken to be not before the institution of the suit, sections 16 and 17 of the Act are different in scope. Section 16 concerns itself with the stage of decree in a pre-emption suit. Section 17, on the other hand, concerns itself with the stages prior to the stage of decree. Subsection (1) refers to the stage prior to the institution of the suit and subsection (2) relates to the position of the vendee upto the passing of the decree. In time-frame the two points dealt with may be quite apart. Section 16 contains the third principle of law peculiar to pre-emption claims namely, that the pre-emptor must have a subsisting right even at the stage of decree. Of the other two principles, the second finds mention in section 1.5 and this is common to all other civil claims that the cause of action or the right of pre-emption must exist at the time of the institution of the suit. If it is lost or not possessed at that stage too, then no suit shall lie. The instance where such a right is lost has been specified in subsection (1) of section 17 of the Act and this instance and not the principle, is peculiar to pre-emption law. Subsection (2) of section 17 of the Act deals with alteration and change in the status of the vendee and that was made by the North-West Frontier Province Pre-emption (West Pakistan Amendment) Act (VI of 1967) whereby the vendee is not permitted to improve his own status after the institution of a suit for pre-emption. In 1970, Muhammad Shuja and 4 others v. Sher Afzal Khan and 2 others PLD 1970 Pesh. 136 came in the field in_which decision Peshawar High Court held that if the vendee by transferring the land in dispute to a person having equal or superior right to that of the vendee during the pendency of the suit brings it that person as a defendant in the case, then there was no prohibition against the employment of this method either in section 16 or section 17 of the Act. By this method, the first vendee, according to the High Court, could create a situation in which he would be able to say to the pre-emptor that he has not been able to maintain his superior right till the date of decree which he was bound to maintain under section 16 of the Act. It was to overcome this broad principle unlimited in point of time except the passing of decree, that explanation to section 16 was added by Act VIII of 1972 and there could be no other appropriate place for it except in section 16 in view of the background in which it came to be enacted. If the superior right was not asserted within the period of limitation, it was lost to the pre-emptor and there could be no question of recognising it beyond the period of limitation. This aspect of the principle of pre- emption law was violated by laying down the proposition in the broad terms in which it was done and that was taken care of by the Explanation to Section 16 of the Act.
11. Subsisting right of pre-emption mentioned in section 16 of the Act has two features. One, that the pre-emptor keeps unaltered the basis, the nature and the character of his own right of pre- emption with regard to the sale that he is pre-empting. The other that he maintains his comparative superiority against the person who is arrayed ultimately and legally against him in.
The matter of preemption claim. Both these features of the subsisting right of pre-emption were recognised in Muhammad Shuja's case by the Peshawar High Court. It was the second feature which required a clarification. The ultimate transferee had to legally establish himself as having a superior or equal right of pre-emption exercisable when the sale was made to him.
12. Applying the tests that are prescribed, we find that in this case the ultimate vendee i,e,, the appellant satisfied the requirements and it was against him that the pre-emptor had to compete to establish his subsisting superior right of pre-emption. He has evidently failed to accomplish it.
13. A factual controversy was sought to be raised with regard to the contiguity of the appellant's land being restricted to only one Khasra Number and not the other and this was attempted to be done by reference to the statement of the Patwari and the Shajra Kishtwar, both part of the record in the case. This contention, however, does not find support from the statement of pre- emptor himself who admits that the appellant Guldar Khan has his land contiguous to the disputed land.
14. For the reasons given, the appeal is accepted. The judgment of the High Court is set aside and the judgments and decrees dismissing the pre-emption suit of the respondent No,1 are restored.