1. ' NASIM HASAN SHAH, J.---This appeal by leave of this Court, is directed against the order of the Lahore High Court dated 13-1-1988 dismissing the Civil Revision Petition filed by the appellants herein against the order of the Additional District Judge, Okara dated 24-11-1987.
2. ' The facts of the case briefly are that respondents Nos.3 and 4 sold 1756 'Canals 19 Marlas of land in Khatas Nos. 2, 9/5, 12, 13/19 and 14/10 situate in village Sadpur, Tehsil Dipalpur, District Okara to respondents Nos.1 and 2 for consideration of Rs,1,75,000.
3. ' The vendees on 13-10-1966 exchanged the said land with the land of Jamal Din, their father (respondent No,5 herein) in lieu of his land situated in estate Rari. However, on 13-11-1966, the respondents obtained some land through a gift from one Irshad Muhammad in Khata No,13/9.
4. Some days thereafter, on 5-12-1966, one Alawal Khan, the predecessor-in-interest of the appellants herein, filed a suit to pre-empt the sale dated 6-12-1965 made in favour of the respondents Nos. 1 and 2. The suit after contest was decreed in favour of Alawal Khan, but on appeal the learned Additional District Judge accepted the appeal in part on the ground that so far as the land situated in Khata No,13/9 was concerned, respondents Nos,1 and 2 had improved their title before institution of the suit and their right of pre-emption had become at par with that of the pre-emptor (who claimed his preferential right on the basis of being co-sharer of the land); hence they could resist the pre-emptor's claim in the land of Khata No,13/9. In the result, the suit brought by the deceased plaintiff/pre-emptor Alawal Khan was decreed in favour of his legal representatives to the extent of 193 Kanals subject to payment of Rs,18,848 while it was dismissed with regard to 1563 Kanals situate in Khata No,13/19. The revision filed by the appellants herein having failed they have come before this Court in appeal, by its leave.
5. ' The main contention of the learned counsel for the appellants Ch. Muhammad Anwar Bhindar is that though a vendee can improve his title before institution of the pre-emption suit, this advantage disappears on his alienating the property to a third person before the institution of pre- emption suit. Hence the respondents did not remain vendees of the land when the gift was made.
6. In such circumstances the gift of the land could not improve their title and they cannot defeat the suit for pre-emption even if the gift was made before the institution of the suit.
7. ' Ch. Imdad All Khan on behalf of the respondents in reply has submitted that no bar exists in law to vendee to transfer his property by sale, exchange, gift etc. To another before or after the institution of the suit for preemption. The only consequence of his making such a transfer will be that the transferee in these circusmtances will be bound by any decree for pre-emption passed against the original vendee. Accordingly, he submits that the sale sought to be impeached in this case by the plaintiff was the one that was effected through a registered deed dated 6-12-1965. The vendees under this sale-deed were respondents Nos. 1 and 2 herein. The subsequent exchange of the said land with Jamal Din, vide exchange deed dated 13-10-1966 was not material in so far as the suit of pre-emption filed to impeach the sale dated 6-12-1965 is concerned because Jamal Din was not a party to the said sale dated 6-12-1964. The plaintiff/pre-emptor had, in fact, no cause of action against him on account of the sale effected on 6-12-1965. Since the suit filed by the preemptor sought to pre-empt only the sale dated 6-12-1965 and in this suit respondents Nos. 1 and 2 only were to be deemed the vendees, for the purposes of the pre-emption suit. This was because the exchange dated 13-10-1966 was a transaction distinct and separate from the sale- deed dated 6-12-1965 and the vendors were not a party to this transaction of exchange, which was not pre-emptible as such. It is true that Jamal Din (respondent No, 5) was added as a respondent to the proceedings, but the suit as regards him cannot be regarded as a suit for pre-emption. At best, the claim of the plaintiff against Jamal Din was for a declaration that the transaction of exchange was subject to the decree for pre-emption against the vendees and it was binding upon him, as successor-ininterest of the vendees.
8. ' We find force in these submissions of Ch. Imdad All Khan. Section 21-A of Pre-emption Act 1913 lays down that: "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- emptor plaintiff in such suit."
9. The words "status of a vendee" in section 21-A indicate that the vendee of the pre-empted sale continues to be the vendee defendant even if he transfers the pre-empted property to some other person before or after the filing of the suit. The reason being that the vendee even after the exchange has a vital interest to protect the sale in his favour from the attack of the pre-emptor, as he is bound to make good his title of the transferee; in the present case Jamal Din. Obviously the vendees would not be entitled to retain the property obtained by them in exchange from Jamal Din unless they are able to make good their title to the land under the sale, sought to be a pre-empted for enjoyment by Jamal Din. Respondents Nos. 1 and 2 therefore, continued to be the "vendees defendants" within the meaning of section 21-A of the Pre-emption Act and continued to avail of the statutory right to protect their title to the land obtained under the sale by improving their status. It is settled law that the right of pre-emption sought to be enforced by pre-emptor by a pre-emption suit arises in respect of a particular sale. It is the said sale which furnishes him with a definite cause of action and parties in such a suit are the persons against whom the pre-emptor has that cause of action namely the parties to the sale sought to be impeached. A subsequent transferee from the original vendee is not directly concerned in, or affected, by the suit for pre- emption as originally brought. Therefore, despite the transfer of the land under exchange dated 13- 10-1966 to respondent No,5, the respondents Nos.1 and 2 could improve their title if the sale in their favour dated 6-12-1965 was impeached through a pre-emption suit and they continued to retain the "status of vendee-defendant" within the meaning of section 21-A and could defeat the challenge of a preemptor, who did not possess a right of pre-emption superior to them after the improvement in their status. As has been rightly pointed out by the High Court, the transaction of gift in favour of the respondents was not challenged by any one through any means.
10. Consequently, the gift in favour of the vendees stood unchallenged and as the vendees had improved their title before institution of the suit and their right of pre-emption had become at par with that of the pre-emptor they could consequently resist the pre-emptor's claim in the land in Khata No,13/9.
11. ' The upshot is that there is no force in this appeal which is, accordingly, dismissed but in the circumstances the parties are left to bear their own costs.