1. ' WALI MUHAMMAD KHAN, J.---Muhammad Mumtaz plaintiff/appellant, through leave of the Court, challenges the judgment of the Lahore High Court dated 27-64989/7-8-1990 whereby his revision petition against the judgment of the appellate Court dated 13-3-1985, was dismissed. Leave granting order is as follows:-- "Leave to appeal is granted to examine whether the High Court has ignored the implication of section 28-A of the Punjab Pre-emption Act."
2. ' The facts of the case are that Muhammad Shafi, Ghulam Shabbir, Ghulam Hassan and Atta Muhammad respondents 1 to 3 and 5 purchased land measuring 102 Kanals 9 Marlas vide registered sale-deed dated 9-8-1980 for a sum of Rs,56,000 from Lal Khan vendor which gave rise to two pre-emption suits, one by Muhammad Mumtaz appellant and the other by Sanwal respondent No,4 herein. The suits were consolidated and after framing consolidated issues in the case and recording of evidence thereon, the learned trial Judge came to the conclusion that Sanwal rival pre-emptor has superior right of pre-emption qua the vendees as well as the appellant on the ground of his being collateral of vendor Lal Khan and passed a decree for possession through pre-emption in his favour vide judgment and decree dated 18-2-1984 in lieu Of Rs,63,246 inclusive of Rs,7,246, compensation for the construction made over the suit property after its purchase by the vendees with a direction to deposit the sale consideration before 18-3-1984 failing which his suit shall stand dismissed. As regards the right of pre-emption of Muhammad Mumtaz appellant and the vendees/respondents, it was held that the appellant was owner in the estate and vested with superior right of pre-emption on that score qua the defendants/vendees though defendants Muhammad Shafi, Ghulam Shabbir and Ghulam Hassan were also owners in the estate but had sunk with Atta .Muhammad defendant/vendee as he lacked the said qualification. ' However, the learned Trial Court, perhaps through inadvertence, did not specifically mention in the judgment and decree that in case of failure by Sanwal pre-emptor to deposit the pre-emption money the suit of Muhammad Mumtaz appellant shall stand decreed. Sanwal respondent herein did not deposit the sale consideration before time allowed in the decree and withdrew Zar-e-Punjam already deposited, resulting in the dismissal of his suit. Muhammad Mumtaz appellant preferred appeal before the Additional District Judge and the vendees/respondents for obvious reasons did not feel the necessity of filing of appeal as the decree passed against them had already become ineffective on account of the conduct of Sanwal pre-emptor. The learned appellate Court vide judgment and decree dated 13-3-1985 supplied the omission of the Trial Court and decreed the suit of appellant and directed him to deposit Rs,63,246.
3. The vendees/respondents feeling aggrieved therefrom preferred revision petition before the High Court which was accepted and by setting aside the judgment of the appellate Court, the suit of the plaintiff/appellant was dismissed holding that Atta Muhammad defendant/vendee having become owner through purchase after the transaction in question but before the suit had acquired ownership in the village and in consequence all the vendees/defendants had equal right of preemption on the date of the suit. Hence the instant appeal through leave of the Court.
4. ' As stated above there was triangular fight between the appellant, Sanwal rival pre-emptor, and Muhammad Shall etc. Vendees in which Sanwal emerged successful as he had superior right of pre-emption being collateral of the vendor, against the vendees as well as the rival pre-emptor and got the decree but lost it on account of his failure to deposit the pre-emption money. The controversy before the appellate Court, therefore, was between Muhammad Mumtaz appellant and Muhammad Shall etc. Vendees with regard to the superior right of pre-emption. The trial Judge has held that the appellant as well as the vendees/defendants other than Atta Muhammad were owners in the estate and had a right of pre-emption on that account but as Atta Muhammad did not possess the same right at the time of the sale his covendees also lost their right on the principle of sinker as recognised by the Punjab Pre-emption law, but did not grant him any relief as the suit of the Sanwal rival pre-emptor was decreed. The appellate Court concurred with him and granted decree to the appellant. However, the High Court did not see eye to eye with the reasoning of both the Courts below and relying on the provision of section 21-A of the Pre-emption Act as well as under the settled principles of the pre-emption law that the pre-emptor must have superior right of preemption on the date of the sale, the date of the suit and the date of the decree, observed that all the vendees/defendants were owners in the estate on the date of the suit and the appellant having failed to establish the superior right of pre-emption on the date of the suit, had no right to the decree claimed by him.
5. ' As is apparent from the leave granting order the High Court has not referred to section 28-A of the Act ibid and this Court has to consider the effect of the said provision of law on the acquisition of right of ownership by Atta Muhammad defendant/vendee after the impugned sale transaction.
6. The provisions of Punjab Pre-emption Act which are relevant for the controversy in hand are sections 21, 21-A and 28-A thereof and the same are reproduced below:-- ' Section 21. Suit for pre-emption.--Any person entitled to a right of pre-emption may, when the sale or foreclosure has been completed, bring a suit to enforce that right.
7. ' Section 21-A. Any improvement, otherwise than through inheritance or succession, made in the status of a vendee-defendant after the institution of a suit for pre-emption shall not affect the right of the pre-emption of plaintiff in such suit.
8. ' Section 28-A. Postponement of decision of pre-emption suits in certain cases.--(1) If in any suit for pre-emption any person bases a claim or a plea on a right of pre-emption derived from the ownership of agricultural land or other immovable property, and the title to such land or property is liable to be defeated by the enforcement of right of pre-emption with respect to it, the Court shall not decide the claim or plea until the period of limitation for the enforcement of such right of pre- emption has expired and the suits for pre-emption (if any) instituted with respect to the land or property during the period have been finally decided.
(2) If the ownership of agricultural land or other immovable property is lost by the enforcement of a right of pre-emption, the Court shall disallow the claim or plea based upon the right of pre- emption derived therefrom.
9. According to section 21 any person entitled to the right of pre-emption under section 15 of the Act can bring a suit for enforcement of his right of preemption. Before the inclusion of section 21-A by Punjab Act I of 1944 vendee/defendant could improve his status before the decree thereby non- suiting the pre-emptor. However, through the insertion of section 21-A any improvement otherwise than through inheritance or succession, made by the vendee/defendant after the institution, of suit for pre-emption shall not affect the right of pre-emptor/plaintiff in such suit. Through this amendment the defendant/vendee, except through inheritance or succession, could not legally affect pre-emptor's superior right of pre-emption on account of improvement in their status after the institution of the suit but impliedly his right to improve status before the institution of the suit remained intact. It is in this context that the learned High Court has accepted his ownership in the estate on the date of the suit and there can be no cavil with this proposition if the acquisition of ownership made by Atta Muhammad had remained intact till the date of the decree and not lost by him permanently.
10. Section 28-A is a statutory provision which ordains That the Court trying pre-emption suit shall postpone the decision thereof if any party to the suit bases his claim on the right of pre-emption which itself is subject to the right of pre-emption of others so long as the period of limitation for the filing of such suit is not expired or the suit if and when filed has not been finally decided. Subsection
(2) thereof is very important and according to it if such right is lost in the suit filed by the prospective pre-emptor the Court shall disallow the claim or plea based upon the right of pre- emption derived therefrom. This provision of law is mandatory and is to be followed in letter and spirit. According to it if the party to the pre-emption suit loses the right through enforcement of the right of pre-emption, the Court shall disallow such claim or plea. In the instant case though Ata Muhammad became owner in the estate after the sale but before the institution of the suit, lost that right through pre-emption decree dated 20-2-1983 vide Exh. P.8 before the decree by the trial Court and reverted to the status of being stranger in the estate and could not help his co-vendees from being sunk with him under the principle of sinker. Nevertheless, the learned counsel for the respondents cited the judgments of the Lahore High Court in cases Ghulam Muhammad and another v. Bagga and others (PLD 1962 (W.P.) Lahore 693), Abdul Majid v. Tora Baz Khan (PLD 1975 Lahore 592) and the judgment of this Court in case Fateh Muhammad v. Rajan Khan and another (PLD 1981 SC 347). No doubt, all these cases deal with the provisions of sections 21-A and 28-A of the Punjab Pre-emption Act but they are of no help to the respondents in non-suiting the preemptor/appellant. In the case of Ghulam Muhammad it was observed that a vendee/defendant is by implication permitted by section 21-A of the Punjab Pre-emption Act to improve his status after the sale but before the institution of suit for pre-emption but it is not permissible for the pre-emptor to improve his status before the institution of the suit and that , the relevant date for determining the status of a pre-emptor is the date of sale on which he seeks pre- emption and any improvement of status after the date of sale is of no avail to him. In the said case the pre-emptor wanted to derive benefit from section 21-A which was not allowed to him. The case of Abdul Majid is also to the same effect wherein it was held that pre-emptor cannot defeat vendee by improving his status after the sale although a vendee could defeat pre-emptor by improvement after the sale and before the institution of the suit. In the case of Fateh Muhammad too, this Court concurred with the observation made by the Lahore High Court in the above-cited two cases and held that section 21-A was available to the defendant/vendee and not to the plaintiff/pre-emptor and the claim of the plaintiff/pre-emptor based on the improvement of status after the sale acquired under the provisions of Martial Law Regulation 15 was disallowed to him. In these cases the provision of subsection (2) of section 28A was not in issue at all and therefore there is no finding that in cases where in spite of the loss of the right of pre-emption through enforcement of the exercise of the right of pre-emption by the prospective pre-emptor, the vendee/defendant can still defeat the claim of the plaintiff and bypass the mandatory provision of subsection (2) of section 28-A.
11. ' The provisions of section 28-A of the Punjab Pre-emption Act and section 29 of the N.-W.F.P Pre- emption Act, both of which deal with the same matter and the language of the two provisions is also identical, came up for consideration before this Court in case Mawas Khan v. Subedar Mehar Dill (PLD 1985 SC 215) and tracing the history of the amendment of section 28-A in the Punjab Pre- emption Act as a result of conflicting decisions in the case of Nadir Ali Shah v. Wali (5 ILR 486) and Kehar Singh v. Maman Singh (1908 PR 140) their Lordships of the Supreme Court, seized of the matter, came to the following conclusion:- "The result of this amendment in the Pre-emption. Law was that a pre-emptor pre-empting a sale must have an indefeasible right of preemption under the Pre-emption Law and a defendant pleading protection for the sale must have an indefeasible right under the Preemption Law. If the pre-emptor claims a superior right of pre-emption on the basis of a purchase which itself is or likely to be subjected to a pre-emption claim then his claim itself would not be decided unless the claim against him is adjudicated upon and upheld and rejected. Similarly, if a vendee bases his claim on a transaction which itself is liable to be defeated by the exercise of a right of pre-emption then unless such a right or claim becomes indefeasible under the Preemption Law he cannot, be allowed to set up a claim on its basis. To achieve this object in judicial proceedings, section 28-A of the Preemption Law was inserted and was also incorporated as section 29 of the N.-W.F.P. Pre- emption Act. It is an instance of express departure from the general principles of section 10, C.P.C.
12. With regard to the stay of the suit subsequently instituted and is confined to pre-emption claim and pleas raised in defence against it."
13. ' The same judgment was followed in a recent consolidated judgment in Civil Appeals Nos.185-P and 186-P of 1990 decided on 28-4-1992 though in a different context but in a pre-emption matter in which the vendee claimed co-sharership in the Khata on account of purchase for the purpose of constructing a house for his own occupation. The vendee had also purchased other property in the same Khata and the pre-emptor having a right of preemption in that case, pre-empted both the transactions one of which was stayed and the other proceeded with in which extending the benefit of section 5(c) to the vendee, the suit ended in dismissal. The second suit was resisted by the vendee on account of his having retained the area purchased by him for construction of house and thereby having become co-sharer in the Khata. After analysing the judgment in Mawas Khan's case and several others', in light of provisions of section 29 of the N.-W.F.P. Pre-emption Act, Civil Apeal No,185-P/90 was allowed and by setting aside the judgment of the High Court whereby the vendee/defendant had been conceded the status of co-sharer on the basis of purchase by him in the Khata for the purpose of construction of a-house, restored that of the trial Court granting pre- emption decree. The aforementioned principle was also adopted in dismissing Civil Appeals Nos.80-P, 81-P and 82-P of 1990 by this Court decided on 15-3-1992.
14. Undeniably, the plaintiff must prove a superior right of pre-emption at the time of the sale and must retain it till the passing of the decree. This principle is subject to the provisions of section 28-A of the Punjab Pre-emption Act and section 29 of the N.-W.F.P. Pre-emption Act. If the plaintiff bases his claim on a right which itself is subject to a right of pre-emption, the preemption suit shall have to be stayed till the expiry of period of limitation, and till the final decision of the pre-emption suit, if any, filed against the said acquisition of right by the plaintiff/pre-emptor. The vendee/defendant is also entitled to defeat the right of pre-emption of the plaintiff by acquiring the same status but before the institution of the suit of pre-emption against him This device, no doubt will equate his right of pre-emption with that of the preemptor but since this right might be subject to right of pre- emption of others, he will not be entitled to derive any benefit therefrom till the period of limitation for suit for pre-emption against the said transaction expires and if a suit is filed till the decision thereof. In case he ultimately loses that right, the Court shall disallow his claim of right of pre- emption based upon the subsequent acquisition before the suit as he no longer retained the right of preemption to defeat the right of pre-emptor. In other words, unless the parties have indefeasible right of pre-emption under the Pre-emption Law they cannot claim any benefit from any transaction which in itself is subject to the right of pre-emption of others.
15. ' In view of what has been stated above, the learned High Court ignored the important statutory provision contained in section 28-A of the Punjab Preemption Act particularly subsection (2) thereof and the impugned judgment passed by it being unsustainable is liable to be set aside.
16. Resultantly, the instant appeal is accepted, the judgment of the High Court is set aside and that of the appellate Court is restored with the result that the case of the plaintiff/appellant stands decreed on payment of Rs,63,246. There is no order as to costs.