' Land measuring 14 Kanals 11 Marlas situated in the revenue estate of 'Find Rakh Dani, Tehsil and District Jhelum was sold by Muhammad Afzal vide a registered sale deed dated 22-2-1969 who is a real brother of the appellants before this Court. Two pe-emption suits were instituted against the sale, one by the appellants and other by Ghulam Haider, brother of the vendor who is respondent No,2 in this appeal. Both the suits were contested and were consolidated. Suit of Ghulam Haider was alleged to be collusive and Benami by the present appellants. Learned Civil Judge, Jhelum vide judgment and decree dated 20-11-1970 dismissed the suit filed by Ghulam Haider holding that the same was collusive and Benami. Suit of the appellants was decreed regarding entire land on payment of Rs,5,228. The judgment and decree rendered by the trial Court was challenged in two appeals, one filed by Muhammad Khan respondent No,1 the vendee and the other by Ghulam Haider the rival pre-emptor. Learned District Judge, Jhelum vide judgment and decree dated 6-4- 1971 decided both the appeals. Suit filed by Ghulam Haider was decreed regarding 1/2 share of the property on the condition that he will deposit Rs,2,614 on or before 6-5-197L It was directed that on his failure to deposit the amount, his suit shall stand dismissed. It was further held that effect of the dismissal of his suit would be that the suit of the lady preemptors shall also stand dismissed for the reasons that if Ghulam Haider goes out of the scene, the lady pre-emptors shall have no superior right to the vendee as he is residuary and hence, possess equal pre-emption right qua the lady pre-emptoRs, It was further held that in case Ghulam Haider deposited the decretal amount in his suit, lady pre-emptors who are the present appellants shall also be entitled to deposit an amount of Rs,2,416 as their suit shall be decreed to the extent of 1/2 share in the suit land, in case of their failure to deposit the decretal amount their suit shall stand dismissed and Ghulam Haidar should be entitled to deposit the balance amount of Rs,2,416 and shall be entitled to the entire suit land. It was, however, directed that in case he fails to deposit this amount, the entire suit shall stand dismissed. Decree in favour of the appellants was reduced to the extent of 1/2 share. This judgment and decree has , been challenged in this RSA by the lady pre-emptoRs, The development which admittedly has taken place in this case is that Ghulam Haidar respondent No, 2 did not deposit the amount directed to be deposited by him and, therefore, the consequence of the judgment and decree rendered by the learned first appellate Court is that the suit of the appellants stands dismissed.
2. Sh. Zamir Hussain, Advocate has appeared on behalf of the appellants. Mr. Muhammad Saeed Bhatti, Advocate has appeared on behalf of L.Rs, of respondent No,1. None has appeared on behalf of respondent No,2 who is, therefore, proceeded against ex parte.
3. Learned counsel for the appellants has argued that the judgment of the learned first appellate Court is erroneous in law inasmuch as the respondent No,2 could not be allowed to frustrate the decree passed in favour of the appellants for no fault of their and, therefore, the suit filed by the appellants could not have been directed to be dismissed due to non-deposit of pre-emption money by the respondent No,2.
4. On the other hand learned counsel for the respondents has argued that as per provisions of section 15 of the Punjab Pre-emption Act, 1913, the right of pre-emption of each pre-emptor is to be determined independently and as the appellants fall in the category of sharers, the vendee respondent being a residuary will succeed the vendor alongwith them and, therefore, they do not possess superior right of pre-emption right qua the vendee and as such their suit could neither have been decreed by the learned trial Court nor by the first appellate Court and even if there is some defect in the judgment of the lower Court no decree can be passed in favour of the appellants and they otherwise do not possess superior pre-emption right qua him.
5. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. There is no cavil with the proposition that the appellants' suit could not have been directed to be dismissed due to the failure of the rival pre-emptor to deposit the decretal amount and, therefore, on this account judgment rendered by the learned first appellate Court to this extent is not maintainable. However, the appellants cannot be granted any relief in this civil revision for the reasons that as per provision of section 15 of the Punjab Pre-emption Act, 1913 each pre-emptor has to prove his superior right of pre-emption independently. Relevant portion of section 15 of the Punjab Pre-emption Act is reproduced as under:-- "Person in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property.---Subject to the provisions of section 14, the right of pre-emption in respect of agricultural land and village immovable property shall vest..............................................................
' Provided that in case where the sale is by a Muslim, the firstly and secondly shall be inapplicable, and the thirdly shall read as follows:-- ' thirdly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold."
' In the case in hand superior right of pre-emption viz. The vendee had to be determined independently without considering the presence or otherwise of Ghulam Haidar respondent who himself was also a rival pre-emptor. Admittedly the appellants will succeed the vendor as sharer alongwith the vendee respondent No, 1 who is admittedly a residuary and, therefore, they do not possess superior right of pre-emption qua the vendee even if respondent No, 2 was alive on the date of sale inasmuch as the real inheritance is not relevant to determine the superior right of pre- emption and its fictional method of determination which is to be adopted inter se the vendee and preemptor. Consequently the appellants as well as the vendee being at par on the basis of claim of inheritance from the vendor under Shariah findings of the two Courts below to the effect that the appellants have superior right of preemption is set aside and it is held that the appellants do not possess superior right of pre-emption qua the vendee..
' Resultantly, I see no force in this appeal. The same is dismissed. In view of the difficult legal question involved in the case, the parties are left to bear their own costs.