1. MUHAMMAD AFZAL ZULLAH, C.J.--These two appeals through leave of the Court in -a pre-emption matter have arisen in the following facts and circumstances as noted in the leave grant order:- Nazir Muhammad respondent purchased 1 Kanal 2 Marlas out of 15 Kanals 5 Marlas through a sale- deed registered on 23-3-1981. He also purchased a piece of land 1 Kanal 10 Marlas in the same Khata and same Khasra numbers through another deed registered on 22-4-1981. These sales were pre-empted by the appellant through two separate suits. The first suit was decreed in favour of the appellant and the exemption regarding building of a house under section 5(c) of the N.-W.F.P. Pre- emption Act was denied to the respondent/defendant/vendee. The second suit was decreed on the same day i.e. 8-9-1983 in favour of the appellant. Thus in one suit the exemption was not allowed to the defendant/vendee while in the other suit the plaintiff/appellant was found otherwise to have superior right of pre-emption. The appeals of the respondent were dismissed but his revisions having been allowed by the High Court the appellant's suits were dismissed. Leave to appeal was granted to examine the contention of the learned counsel for the appellant that the respondent who had purchased a portion of land for the construction of a house of the joint holdings of the land even if otherwise satisfied the requirements of exemption as provided under the Pre-emption Act, shall not be entitled to the statutory protection afforded to him in this case since the decree in favour of the appellant had been passed before 31st July, 1986, the same could not be reversed thereafter on the ground that the plea of exemption had been declared by this Court to be repugnant to Islam and was not enforceable. The learned counsel for the appellant has not pressed the above-noted point. But with permission while pressing Appeal No.186-P of 1990 regarding the first transaction, has argued that the respondent has wrongly been allowed exemption as, according to him the two transactions were in fact one and if that is so the area purchased by the vendee in the two transactions goes beyond the limit of exemption. He also contended that the vendee could not have taken the benefit of exemption if he had purchased the area within the exemption in the first transaction without the partition of the holding or before the purchaser seeking and obtaining the consent of theco-sharers.
2. However, when the learned counsel for the respondent pointed out a recent judgment of this Court Sirajul Islam v. Ahmed ldris (1991 SCMR 903), the former did not press the point any further. See also the original judgment relied upon in the case of Sirajul Islam; namely, Fazal Karim v. Muhammad Zaman (PLD 1989 SC 764). Faced with the aforestated position the learned counsel for the appellant could not press the Appeal No.186-P/1990 which related to the first transaction, any further. The same, accordingly, is dismissed.
3. The next question arises; as to whether the respondent vendee who had succeeded in resisting the appellant's suit regarding the first purchase of March 1981 could not be treated as having become co-sharer in the same Khata on account of the said purchase remaining intact and that being so, he had .Acquired right of pre-emption equal and similar in nature which the appellant/plaintiff had. And whether, on the reasoning which prevailed with the High Court the appellant's second pre-emption suit would also' be not defeated. Two judgments were cited at the Bar. They are Ahmad Khan v. Sattar Din (PLD 1981 SC 148) and Gulzada v. Muhammad Usman (PLD 1990 SC 465).
4. The judgment in Civil Appeal 185 of 1990 was reserved as both the learned counsel submitted that they would make further research and assist the Court by submitting the concise statements.
5. While the learned counsel for the appellant failed to render any assistance, learned counsel for.
6. The respondent has in an elaborate, though yet incomplete, survey of the case-law in his concise statement tried to show that the judgments in the case of Ahmed Khan and Gulzada are distinguishable. He also cited one of the basic judgments from the Peshawar High Court namely, Saadullah Khan and 3 others v. Mohabat and 29 others (PLD 1975 Peshawar 218) (Full Bench). This judgment undoubtedly, was approved by the Supreme Court in Ahmad Khan v. Sattar Din (PLD 1981 SC 148). The learned counsel for the respondent to be fair to him also cited the following judgments in order to show the development of the law in affirmation of the view held by the Full Bench of the Peshawar High Court:- (1)Bashir Hussain Shah v. Mas'kin (1988 SCMR 1251).
(2) Mohabbat v. Asadullah Khan and others (PLD 1989 SC 112).
(3) Mohammad Ishaq etc. v. Abdul Ghafoor (1987 CLC 2134).
(4) Ghulam Muhammad and 11 others v. Bakhsh and 5 others (PLD 1991 SC 563).
7. He also analysed in his concise statement the Full Bench judgment of the Peshawar High Court as containing the following reasons:- (i)It does not stand to reason that even though the pre-emption is a right of a person to acquire in preference to other in respect of a sale, that right will be lost in a manner not indicated by the Act itself. We fail to understand how can the fragile right of the vendee be used as a stick to beat the person whom the law has given preference and who can not himself substituted for the vendee.
8. (ii)A person who is only entitled to pre-empt a part of the property cannot be adversely affected by the improvement in the status by the vendee in that part to which his right does not extend.
9. (iii)It is indeed quaint logic that though the pre-emptor is entitled to a part on account of his right and in the result the vendee is entitled to retain the rest, the former will not have that to which he was entitled for 'the latter has acquired title to the rest. This reasoning in a circle will also frustrate the very objectives of the law.
10. (iv)The hollowness of the argument will also stand thoroughly exposed by the fact that no sooner a person succeeds in his right of pre-emption to part of joint property, that property ceases to be joint. In this view of the matter even if the defendant-vendee becomes a co-sharer in the rest of the land, it cannot be possible for him to lay his hands on a property which would be no longer joint. It is true that new Khata is not entered in the revenue papers immediately and the matter has to wait till next Jamabandi but notionally separation is complete and effective no sooner the pre- emptor succeeds to a part only.
(v) The vendeee in such a case cannot be allowed to prejudge the findings of the Court by asserting that after the decree he would be left with such and such Khasra Numbers on the basis of which he can defeat the right of the pre-emptor. In the circumstances the question of his asserting superior right on the basis of land to be left with him after the decision of the case, therefore, does not arise. After the decision of the case the making of such an assertion becomes useless because there is no case pending in which the assertion can be made."
11. In support of the proposition that a vendee in the circumstances like the present one cannot take advantage of one or the other transaction for defeating the claim of the plaintiff, he also quoted the following observation of the Supreme Court in the case of Ahmed Khan:- "We are inclined to agree with the view expressed by the learned Judges of the Full Bench: It is clear that the right vesting in the preemptor to claim a certain portion of the property on the ground of vicinage cannot be defeated retrospectively by the judgment of the Court to the effect that the right did not extend to certain other portion of the property, which could thus be allowed to remain with the vendee. The High Court seems to be right in taking the view that the decision of the Court in such a case leaving a part of the property with the vendee on the ground that the pre-emptor's right did not extend to it, should not be allowed to operate retrospectively so as to defeat the right of pre-emption existing on the date of the. Institution of the suit as well as at the time of the sale."
12. After citing the aforenoticed case-law which obviously had the effect of negating the respondent- vendee's case for equal right of pre-emption as co-sharer, regarding the second transaction, the learned counsel for the respondent-vendee proceeded to distinguish all these judgments on the ground that two transactions therein were of the same day. While in the present case, the two purchases made ,by the respondent-vendee were one after the other. The argument being that the respondent-vendee having succeeded regarding the first transaction on the basis of the exemption under section 5(c), he became a co-sharer prior to the purchase made by him in the second transaction; therefore on the latter date of the second transaction he had become a co- sharer in the same Khata and this could defeat the Appellant's claim on the ground of co- sharership and thus the learned counsel for the respondent sought the dismissal of the appellant plaintiff's other Appeal (No.185-P of 1990) also.
13. The argument as advanced and in so far it goes, from the respondent's side in the concise statement, seems very attractive; but, the learned counsel failed to 'notice two other judgments of the Supreme Court wherein the transactions were of different dates and the results in the said two judgments if followed in. The Second Appeal (No.185-P of 1990), it must be accepted. The judgments are in the cases of Akram v. Mst. Sakina Begum and another PLD 1984 SC 334 and Nawaz Khan v. Subedar Meher Dill (PLD 1985 SC 215).
14. In the first mentioned case which in law is similar but on facts dissimilar, the same argument was examined by this Court as has been advanced by the respondent's counsel in this case; but in the said case on behalf of a different party in a suit for pre-emption namely the pre-emptor. The relevant law then brought to the notice of the Court including the Peshawar Full Bench judgment in the case of Saadullah Khan was examined. The Lahore case of Ghulam Ahmad PLD 1962 Lah. 693 was also noticed. Besides, the case of Mohammad Khan PLD 1983 SC 181 was considered along with the case of Malik Hussain PLD 1970 SC 299. The judgment of the Lahore High Court though in a slightly different context in the case of Abdul Khaliq PLD 1969 Lah. 269, was also noticed. In addition to the aforementioned decisions, this Court in passing considered and noted the following case- law as important in the context of the controvesy involved:- (1)Mohammad Mujtaba v. Ghulam Ali and others (1980 SCMR 7).
15. (2)Mst. Fateh Bibi v. Ahmad Khan and others (PLD 1971 Lah. 171).
16. (3)Muhammad Shuja and others v. Sher Afzal Khan and others (PLD 1970 Pesh. 136).
17. (4)Mst. Sant Kaur v. Teja Singh and others (AIR 1946 Lah. 142).
18. (5)Mool Chand and others. v. Ganga Jal and others (AIR 1930 Lah. 356).
19. To the 'aforenoticed cases must also be added, the case of Ahmed Khan PLD 1981 SC 148 which incidentally was not noticed in the case of Akram.
20. Besides the judgment of this Court in the case of Akram which goes against the respondent's plea, the. Other judgment of the Court in the case of Mawas Khan also goes against the respondent's plea in Civil Appeal 185-P of 1990. Both the judgments of this Court in the cases of Akram and Mawas Khan arose out of the cases from NWFP. 1n the case of Mawas Khan, the effect of the section 29 of the NWFP Pre-emption Act, 1950, as also that of section 28-A of the Punjab Pre-emption Act was examined together. Moreover, the cases of Abdul Majid PLD 1982 SC 82 and Nadir Ali Shah (51LR 48G) were taken note of in addition to the well-known case of Kahar Singh (1908 Punjab Record 140).
21. The discussion involved in' the coiitroversy was concluded in the case of Mawas Khan as follows:- "Before the NWFP Pre-emption Act was promulgated and enforced in the North-West Frontier Province in 1950, the Punjab Pre-emption Act was in force there. In 1924, a difficulty had arisen in administering the Punjab Pre-emption Law and it had arisen on account of conflicting decisions in the cases of Nadir Ali Shah v. Wali etc. (1) and Kehar Singh v. Mahman Singh (2). In order to resolve this conflict and to restore the pristine efficacy of the law of pre-emption by an amending Act section 28-A was added. The object and reasons of this amendment in the Punjab Pre-emption Act explain with exactness the genesis and the purpose of the amendment in the following words:- `The High Court of Judicature of Lahore has laid down in the case of Nadir Ali Shah v. Wali etc. Published at page 486 of Indian Law Reports Series, Vol.5, 1924, that a successful pre-emptor is vested with the rights of the vendee not from the date of the sale but from the date on which he satisfies the conditions of the decree in his favour. Consequently in order to defeat the law of pre- emption, a man has only to split up his transaction into two parts, purchase one Kanal of land on the first day and the balance on the second day. If a suit for pre-emption is brought with respect to the second sale by the village proprietors, he can successfully defend the suit on the ground that he acquired proprietary rights in the village one day prior to the second purchase. This means that to all intents and purposes the Punjab Preemption Act stands repealed.
22. The amending Bill does not in any way either extend or narrow down the scope of the Punjab Pre- emption Act. The main object of the Bill is to prevent the existing provisions of the law of pre- emption being defeated. The amending Bill will make it impossible for the purchaser to defeat the law of pre-emption by splitting his transaction into two parts, and to retain the property acquired by his second purchase, even though he may subsequently lose the property acquired by his first purchase. The amending Bill will thus restore the law of pre-emption to the same position as it occupied when the case of Kehar Singh v. Mahman Singh etc. Published at page 140 of the Punjab Record 1908 was decided by Shah Din, J.
23. The result of this amendment in the Pre-emption Law was that a preemptor 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 or 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.
24. With regard to the stay of the suit subsequently instituted and is confined to pre-emption claims and pleas raised in defence against it.
25. The view taken by the High Court in applying section 29 of the Act suffers from no legal infirmity."
26. The ratio in the judgment of Mawas Khan's case is to the effect that the vendee if he bases his claim on a transaction which itself is liable to be defeated by the plaintiff's right of pre-emption, then unless such a right or clam becomes indefeasible, he cannot be allowed to set up a claim on his plea This obviously directly flows from the language of section 29 of the NNWFP Pre- II emption Act, 1950, which reads as follows:- "SECTION 29 OF THE N: W.F.P. PRE-EMPTION ACT: (1)No decree be passed until pre-emptorsbasic right unheld.-- 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 a right of pre-emtion with respect L 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-emtion (if any) instituted with respect to the land or property during the period have been finally decided.
27. (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:'
28. In this case, section 29 will have full application in that: the respondent-vendee's plea of equal right of pre-emption derived from the ownership of the agricultural land shall be defeated by the enforcement of the right of pre-emption with respect to it, because the Court is debarred from deciding (this plea of the vendee) "until the period of limitation for the enforcement of the right of pre-emption (claimed by the present appellant plaintiff) has expired and the suit for pre-emption (if any) instituted (by him) with respect to the land or property during the period, has been finally decided:"
29. In the light of the aforegoing discussion and the law laid down by this Court as discussed above, the Civil Appeal 185-P of 1990 is allowed. The judgment of the High Court impugned in the said appeal is set aside and the decision of the trial Court regarding the transaction of April, 1981 granting the decree to the appellant-plaintiff, regarding the said transaction is restored. There shall be no order as to costs.