' In this Regular Second Appeal the vendee-defendants, Karam Hussain and Charagh Shah, in a suit for possession by pre-emption brought by the plaintiffs, Hasil and Rahim Bakhsh, respondents herein, the principal question is whether a pre-emptor who was possessed of the right of pre- emption at the date of the dismissal of his suit by the trial Court must retain that right till a decree is passed in his favour.
2. Charagh Shah, appellant, died during the pendency of this appeal and his legal representatives have been brought on record.
3. The facts, on which the respective claims of the parties are founded, are admitted. The land in suit was sold by the vendor, Allah Din by means of a sale mutation dated 24-9-1971 to the vendee- defendants, Karam Hussain and Charagh Shah, appellants. The palintiffs, Hasil and Rahim Bakhsh, brought this suit on 8-9-1972, claiming that they were entitled to pre-empt the sale as co-sharers in the Khata and as owners in the estate. It was common ground between the parties that the vendee-defendants were in occupation of the land in suit as tenants at the date of sale viz. 24-9- 1971. The vendee-defendants contested the suit, among others, on the ground that as tenants of the land in suit, they had a superior right of pre-emption. They relied upon paragraph 25(d) of the Martial Law Regulation No,115 of 1972..The learned trial Judge gave effect to this plea and dismissed the suit by his judgment, dated 15-6-1974. The plaintiffs appealed. It appears that consolidation of holdings was in progress and as a result thereof the plaintiffs' Khata was separated and they ceased to be co-owners in the Khata of the land in suit. Thus, though at the date of the sale, at the date of the suit and at the date of the trial Court's decree, dated 15-6-1974, the plaintiffs were co- sharers of the land in suit, yet they had ceased to be the co-sharers as a result of the consolidation of holdings, when the learned Additional District Judge decided the appeal by his judgment, dated 18-3-1977. By that judgment, the learned Additional District Judge held that the vendee-defendants could not defeat the suit on the ground that they were tenants of the land in suit because at the date of the sale, viz. 24-9-1971, they had no right of pre-emption on the ground of tenancy and that at the date of the suit, viz. 8-9-1972, their position was that of owners and not that of tenants. The learned Additional District Judge was, however, of the view that for the purposes of determining the plaintiffs right of pre-emption, the relevant date was the date of the decree of the trial Court viz. 15- 6-1974 and as at that date, the plaintiffs were admittedly co-sharers of the land in suit, the fact that they had ceased to be the co-sharers after the passing of that decree did not have the effect of depriving them of the right of pre-emption as co-sharers. He, therefore, decreed the suit by his judgment dated 18-3-1977.
4. At this point, one more important fact must needs be mentioned; it is that the vendee- defendants were also owners in the estate. This fact has this significance that if the true view of the law be, that in order to succeed the plaintiffs must prove that they were co-sharers at the date of the appellate decree dated 18-3-1977, then the rights of the plaintiffs and the defendants were equal, in that both were owners in the estate.
5. The question turning upon Martial Law Regulation 115 can be dealt with shortly. That Regulation came into effect in Kharif 1972; it was by that Regulation, paragraph 25(3)(d), that tenants were given the first right of pre- emption. It is, therefore, obvious that at the date of the sale viz. 24-9-1971, the vendee-defendants had no right of pre-emption. Equally plain is the fact that at the date of the suit as also at the date of the decree, they were owners of the land in suit. It is now well-settled by binding authority that 'once they became owners they could not claim any right as tenants as their rights as tenants would be extinguished by merging of the interests of tenants into ownership rights'. See Fazal Khan and another v. Ghulam Rabbani PLD 1983 SC 265. The learned Additional District Judge was, therefore, right in taking the view that he did, namely, that the vendee-defendants could not defeat the plaintiffs' suit on the ground that at the date of the sale, they were the tenants of the land.
6. On the principal question, the learned Additional District Judge observed:-- "If during the pendency of the appeal, the position of the respondents had come at par with the appellants on account of consolidation then this aspect cannot be taken into consideration as the relevant date for adjudication of the rights of parties is the date of the decision of the lower Court.
In my opinion the Appellate Court in a pre-emption suit cannot go beyond the date of judgment of the lower Court for adjudicating the rights of pre-emption as asserted by the parties. Till the date of decision of the lower Court, the appellants had superior right of pre-emption being co-sharers in the Khatas in which the suit land was situated so the consolidation after the decision of the lower Court will not have the effect of destroying this right and to my mind it is immaterial that the lower Court dismissed the suit of the plaintiffs. The decree under the law is a formal expression of an adjudication which conclusively determines the right of the parties with regard to the matters in controversy in a suit. By the judgment the lower Court has decided the suit though it was dismissed. I am of the opinion that for determining the right of pre-emption, it is immaterial whether the suit was dismissed or decided in favour of the pre-emptor. The material date for adjudicating the rights of the parties is the date of decision of the suit. Since at the time of decision of the suit by the lower Court, the appellants had superior right of pre-emption so in my opinion the consolidation after the decision of the suit shall not destroy this right."
7. If I may say so, in taking that view, the learned Additional District Judge failed to take into account the real nature of the right of pre-emption; and in assigning the expression 'decree' the technical meaning assigned to it by section 2(2) of the Code of Civil Procedure, the learned Additional District Judge also forgot that this branch of the law of pre-emption has been developed by the Judges of higher judiciary, or to put it in another way, has been judicially developed and as was said by Oliver, L.J. In Watson v. Lucas (1980) 3 All ER 647, 656, 'it is dangerous to seek to construe a judgment... As if it were a statute'.
8. The classic statement of the nature of the right of pre-emption is to be found in the judgment of Sir Meredyth Plowden in 136 P.R. 1894; this statement was cited with approval by that great Judge, Din Muhammad, J. In the leading judgment in the Full Bench case of Madho Singh v. James R.R.
Skinner AIR 1941 Lah. 433, 440.
"A preferential right to acquire land, belonging to another person upon the occasion of a transfer by the latter, does not appear to me to be either a right to or a right in that land. It is jus ad rem alienam acquirendam and not in jus re aliena ... If he exercised the pre-emptor's right between him and the owner, I think it becomes still more apparent that it is not a right to the land sold. A right to the offer of a thing about to be sold is not identical with a right to the thing itself and that is the primary right of the pre-emptor. The secondary right is to follow the thing sold, when sold without a proper offer to the pre-emptor, and to acquire it if he thinks fit in spite of the sale made in disregard of his preferential right. But even a decree in a suit for the purpose of enforcing this secondary right does not give the pre-emptor a right to the thing sold. He does not acquire that right until he has paid the price fixed in the decree within the prescribed period, and this he need not do unless he chooses. If he does so, the right, title and interest of the vendor which had meantime vested in the vendee is divested and vests in the preemptor and then and not till then he has a right to the land itself."
9. It was upon this principle that a vendee was, before the enactment of section 21-A of the Punjab Pre-emption Act, 1913, held entitled to improve his status effectively right upto 'the adjudication of the suit against him', and by an acquisition based on a transfer pendente lite to arm himself 'with an effective weapon to destroy the pre-emptor's superior claim'. (Madhu Singh's case at p.442).
10. I have said that this branch of the law has been 'judicially developed'. As any one even slightly acquainted with the history of the law of pre-emption will know this, I need not cite cases. It suffices to say that it has long been well-settled `that the plaintiff's preferential right must not only exist at the time of the sale but it should also be in existence at the time of the suit as well as at the date of the decree' (Madho Singh's case at P.437). The crucial words are 'the date of the decree' and the question is whether the decree means any decree, be it for the pre-emptor or against him? Must the pre-emptor retain his preferential right till such time as the trial Court or an Appellate Court has recognized his right of preemption and decreed his suit or is it sufficient that he had that right when the suit was decided by the tiral Court, even though the decision was one of dismissal of the suit?
11. The principle that can be extracted from decided cases appears to be that till such time as a decree has been passed in favour of the pre-emptor, he is still seeking to enforce his right to pre- empt. It was, as has been seen, upon that principle that the vendee was held entitled to improve his status upto 'the adjudication of the suit against him' in Madho Singh's case. Madho Singh's case was considered in another Full Bench case, Faiz Muhammad v. Ch. Fajar All AIR 1944 Lah. 172, where the question was 'whether it is permissible for a preemptor to so improve his position before the date of the institution of the suit although after the date of the sale as to render the improvement made by the vendee in his status after the institution of the suit for pre-emption against him ineffectual' and Abdul Rehman, J. Speaking for the Full Bench, held:-- "A pre-emptor must be, in my judgment, able to satisfy the Court that he has continued to occupy a superior position to that of the vendee from the date of the sale to the date on which a decree is to be passed by the trial Court in his favour. Judged from that aspect, a pre-emptor, who is found to have lost his superiority at any time during that period, must be held to be disentitled from getting a decree for pre-emption."
This is how the learned Judges of the Full Bench understood the expression 'at the date of the decree'; the pre-emptor must retain his superior right till a decree is to be passed 'in his favour'. The words 'by the trial Court' in the above passage should not, in my judgment, be taken as fixing the date of the decree of the trial Court as the outer limit of the period during which the preemptor must needs retain his superior right. For, the decree of the trial Court is subject to appeal, and an appeal is a continuation of the suit. True that the trial Court might have wrongly dismissed the suit; but it might as well have wrongly decreed it in the pre-emptor's favour. It should follow logically, therefore, that if the trial Court has dismissed a pre-emptor's suit, rightly or wrongly, he must retain his preferential right till the date of the decree in his favour by the Appellate or Revisional Court, for till then, he is still seeking to enforce his right to pre-empt.
12. The industry of the learned counsel for the appellant enabled him to cite Reni Manraj Kuer v. Lala Basant Rai alias Lala Panna Lal (171 I.C. 891), whose facts have a close similarity with the facts of this case. There, as here, the plaintiffs suit was dismissed by the trial Court. She appealed but during the pendency of the appeal she had disposed of the land, basis of her right of preemption. The learned Judges referred to the principle that "if he (the plaintiff in a suit for pre-emption) loses that right after the sale or at any time after the institution of the suit and before a decree can be passed in his favourcould be passed in her favour in this appeal".
13. This principle flows directly from another line of decided cases, that is, cases in which.
Notifications were issued under section 8 of the Punjab Preemption Act, 1913, and section 7 of the N.-W.F.P. Pre-emption Act, 1950, declaring that the right of pre-emption had ceased to exist with regard to certain properties. Those cases draw a clear line between those suits in which decrees had been passed before the notification and suits in which no decrees had been passed. To quote from the leading case on the subject, Mst. Bibi Jan v. Miss RA. Monny and another (PLD 1961 SC 69), a case in which the notification was issued during the pendency of the pre-emption suit, "in the former type of cases, it could be reasonably argued that the right to sue had merged in the decree of the Court, which henceforth be regarded as the source of right, for the decree-holder " With the promulgation of the notification, it was held, "all rights of pre-emption would cease to exist, in the area mentioned in the notification, whether they pertained to sales that had already taken place or to those which were to be held hereafter". As regards the cases in which decrees had already been obtained by the pre-emptors prior to the notification, "it could not be said that the preemptor was seeking to enforce his right to pre-empt. The right had already been successfully asserted before the date of the notification".
14. Mistri Abdul Hamid v. Malik Amir Khan and others (PLD 1984 SC 418), a case under section 7 of the N.-W.F.P. Pre-emption Act, 1950, is directly in point, for in that case, the suit was dismissed on 19- 4-1965, the first appeal by the plaintiff was dismissed on 16-6-1966 on the ground that the plaintiff had no right of pre-emption and the notification under section 7 was issued on 16-8-1972 when the plaintiffs second appeal was pending in the High Court. The High Court accepted the appeal, set aside the decrees of the lower Courts, held that the plaintiff had a superior right of pre-emption and sent the case back to the trial Court for deciding the remaining issues, without however noticing the notification under Section 7. One of the grounds on which leave to appeal was granted by the Supreme Court was to consider the effect of the notification on the plaintiffs right of pre- emption. After noticing the ratio decidendi of Mst. Bibi Jan's case, it was held: "The position would be the same, we consider in our opinion, in cases where suits filed by pre- emptor had been dismissed by the trial Court or the first Appellate Court and their appeals were pending in the High Court with the result the such pre-emptors would lose the right of preemption and would not be able to prosecute and carry on their appeals for the reason that no right of pre- emption would inhere in the appellant when the Court will be called upon to adjudicate on their case."
15. Mark the words "would not be able to prosecute and carry on their appeal for the reason that no right of pre-emption would inhere in the appellant when the Court will be called upon to adjudicate on their case" and their close resemblance to the language in 171 I.C. 891 referred to above.
16. For these reasons, I would hold that a pre-emptor must retain his preferential right as against the vendee till a decree has been passed in his favour. And, as the plaintiffs herein had no such right when the learned Additional District Judge decided the appeal, their suit should have been dismissed.
17. In the result, the appeal is accepted, the judgment and decree of the learned Additional District Judge dated 18-3-1977 are set aside and the suit is dismissed. The parties are, however, left to bear their own costs.