1. ' This is an application under section 115, Civil P.C. From a judgment of learned Additional District Judge, Jhang by which a decision of learned trial Court dated 18-7-1979 was reversed by him solely on account of doctrine of lis pendens.
2. ' Facts bearing on the decision of the case briefly set out are these:--- Mahnda owned land measuring 106 Kanals, 18 Marlas at Mauza Gilmala of Tehsil and District Jhang. He died on 29-10- 1972 without leaving a male issue. He was survived by a widow, Mst. Zainab Bibi; a daughter, Mst.
3. Shamim; mother, Mst. Hashmat Bibi; a sister, Mst. Hussaini and a brother, Naseer-udDin. His land was distributed among his surviving heirs in accordance with Islamic Law of Inheritance, vide inheritance Mutation No,718 sanctioned on 20-10-1972 as given below:--- Mst. Zainab Bibi, widow: - 1/8th share Mst. Shamim, daughter: - 1/2 share Mst. Hashmat Bibi, mother: - 1/6th share Mst. Hussaini, sister: - 5/72nd share Naseer-ud-Din, brother: - 5/36th share ' By Mutation No,733, attested on 22-1-1973, Mst. Hashmat Bibi transferred her 1/6th share in the land by Tamleeq to Naseer-ud-Din. Similarly, Mst. Hussaini also transferred her 5/72nd share to him.
4. Though transfer of share by Mst. Hussaini was not questioned, yet, no mutation for change of names was put on file. In result, share of Naseer-ud-Din in the joint land came to 757/2138. In terms of area, it worked out to be 37 Kanals, 17 Marlas.
5. ' By a deed of sale registered on 25-1-1974, Naseer-ud-Din sold his entitlement in the land (37 Kanals, 17 Marlas) to Baqir and Zafar Ali for a sale price of Rs,36,000. Kamir, Shamir sons of Mehram and Dilmir son of Murad jointly claimed pre-emption in respect of the above sale of land and brought a suit for it on 8-1-1975 in a Civil Court at Jhang. Superior right of pre-emption was asserted on the ground of non-occupancy tenancy in the land sold. On consent of the vendee- defendant, pre-emption suit was decreed on 29-5-1975 in favour of the pre-emptors. Presumably, terms of pre-emption decree were fulfilled.
6. ' On 2-3-1974, Mst. Shamim and Mst. Zainab Bibi instituted a civil suit against Naseer-ur-Din; Mst.
7. Hashmat Bibi and Mst. Hussaini for declaration to the effect that share of the land transferred by Mst. Hashmat in favour of Naseer-ud-Din by way of Tamlccq was invalid on account of vice of Musha. Defendants contested the suit. Issues were also settled. Plaintiffs gave evidence in support of the issues they were required to prove. Defendants failed to give their evidence. The trial Court, therefore, closed it. On 17-1-1976, the trial Court decreed ex parte the suit in favour of the plaintiffs.
8. ' On 30-4-1976, successful pre-emptors as plaintiffs brought a civil suit to have the Court-decree dated 17-1-1976 declared invalid on the ground that it did not bind their interests, in the land in dispute. Principally, it was averred that since they were not made parties to the civil suit culminating in the impugned decree, they could not be held bound by it and, therefore, it did not affect their rights in the land secured by pre-emption decree in their favour. Heirs of Mahnda were defendants Nos.1 to 5 in the suit. Vendees namely Baqir and Zafar Ali were defendants Nos.6 and 7 in the suit. It was resisted. On 18-10-1979, the trial Court decreed the suit in favour of the plaintiffs. In appeal preferred by Mst. Shamim alongwith Mst. Hashmat Bibi, decision of the trial Court was reversed by learned Additional District Judge by holding "that pre-emption decree Exh.P3 dated 29-5-1975 will not affect the rights of the appellants till the title decree, dated 17-1-1976 is got set aside. However, the plaintiffs/respondents can have recourse to the proper forum for the refund of their pre-emption amount". Thereupon, the plaintiffs in the suit preferred this civil revision. It was admitted to hearing on 16-3-1985 and status quo regarding existing possession was maintained subject to furnishing of security with respect tdmesne profits.
9. ' Learned counsel for the parties were heard on merits of the civil revision. With their assistance, record was also looked into. Essence of preemption was substitution. In Bishan Singh and others v.
10. Khazan Singh and another AIR 1958 SC 838, on the nature of pre-emption, it was stated that: "The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. The pre-emptor has a secondary right or a remedial right to follow the thing sold. It is a right of substitution but not of re-purchase i,e,, the pre- emptor takes the entire bargain and steps into the shoes of the original vendee. It is a right to acquire the whole of the property sold and not a share of the property sold. Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place". As regards right to acquire the whole of the property sold and not a share of it, the rule was subject to the extent of pre-emptive right, whether it extended to the whole or part of the property sold. Preempted sale of land was completed on 25-1-1974. It gave rise to exercise of A right of pre-emption by the plaintiffs. They instituted pre-emption suit, on 8-1-1975. It was decreed in their favour, on 29-5-1975, on consent by the vendees. It is settled law that rule of lis pendens was as much applicable to preemption suit as to any other suit but the rule did not affect the existence of a pre-existing right. Suit for declaration was instituted on 2-3-1974, that is after the sale of the land by Naseer-ud-Din on 25-1-1974. Naseer-ud-Din had sold his own share in the land and also the shares in it taken from his mother --Mss. Hashmat Bibi and sister --- Mst. Hussaini. Only transfer in Tamleeq by Mst. Hashmat Bibi alone was questioned in suit by its plaintiffs on ground of Musha. The sale of land by Naseer-ud-Din as regards his own share and that of his sister was not the subject-matter of dispute in the suit filed by Mst. Shamim and Mst. Zainab Bibi i,e, the daughter and widow of Mahnda. It may not be open to a serious doubt that exercise of right of pre-emption was subject to a final decision in a title suit concerning the land or property sold and sought to be pre-empted, subject to an overriding consideration that the title suit was neither collusive nor friendly. Defendants to the suit for declaration instituted by Mst. Shamim and Mst. Zainab Bibi failed to give evidence in defence and also defaulted in appearance on the date fixed for hearing of the suit. The result was an ex parte decree against them by the trial Court on 17-1-1976. None of the defendants including Naseer-ud-Din vendee applied to the trial Court for setting aside of the ex parte decree. They may not be interested in it because meanwhile, the land sold by Naseer-ud-Din including the share taken by him from Mst. Hashmat Bibi was successfully pre-empted by the petitioners. Petitioners were not a party to the suit for declaration, though they had successfully pre-empted the land in dispute meanwhile and presumably paid/deposited the sale price in Court for acquiring a complete title to it. In my opinion, they were necessary parties to the proper and satisfactory decision in the suit for declaration. In their absence, their rights in the land were materially affected. They were virtually condemned unheard. Furthermore, it was a point for serious consideration of the Court, whether doctrine of Musha applied for setting aside of 1/6th share in the land in Tamleeq to Naseer-udDin by her mother, more particularly, when it was not questioned by her but was brought under challenge by strangers to the Tamleeq. Another point for consideration of the Court was, whether the pre-emption decree in toto was invalidated on account of ex parte decree passed in the suit for setting aside of the gift by Mst. Hashmat Bibi in favour of Naseer-ud- Din. Learned Judge below merely felt content by applying the rule of lis pendens to the facts of the case for setting aside of the judgment of the trial Court decreeing the suit in favour of the petitioners. Other material points for decision in the case were not adverted to by him at all. Upon setting aside of the ex parte decree, the original suit for declaration may have revived for adjudication on merits for allowing a chance of defence to the petitioners for saving pre-emption decree in their favour. In my view, decision in the appeal did not properly advert to and embrace all the material points requiring adjudication in it. Therefore, it was not a proper disposal of it in terms of law. In this view, civil revision was bound to succeed; impugned judgment and decree of learned Additional District Judge, Jhang dated 5-2-1985 were liable to be set aside for a remand of the appeal to learned District Judge, Jhang for its hearing on merits and decision afresh in accordance with law.
11. ' As a result of the above, civil revision is allowed and impugned , judgment and decree of the lower Court dated 5-2-1985 are set aside for hearing of the appeal and its decision afresh in accordance with law by learned District Judge, Jhang. Parties shall bear their own costs in this Court.
12. ' Records shall be returned.