1. ' SAEEDUZZAMAN SIDDIQUI, J.--The above appeal with the leave of this Court is directed against the judgment and decree dated 9-6-1991 passed by a learned Judge in Chambers of Lahore High Court is R.S.A. No,47 of 1984. Leave was granted in the case as follows:-- "There is some force in the submission of the petitioners that petitioners Nos. 1 and 2 too had come at par with the respondents after the death of their father Taj Din (during the pendency of suit).
2. Hence the decree in favour of the respondents, as passed, was erroneous (see Mehr Allah Ditta and another v. Muhammad Ali and another PLD 1972 SC 59.
3. ' Leave granted. Security Rs,5,000. Interim order of stay to continue."
4. ' Relevant facts of the case are that one Mst. Hamidan Bibi owned land measuring 35 Kanals and 7 Marlas situated in Village Chak Choda, Tehsil and District Sialkot (hereinafter to be referred as the 'suit land'). She sold the suit land through Mutation No,4 dated 2-9-1973 to Muhammad Akram and Muhammad Iqbal sons of Taj Din, and Yaqoob and Ishaq sons of Lal Din for a sum of Rs,40,000 Muhammad Rasheed son of Sardar and Ghulam Rasool son of Fateh Din pre-empted the above sale by filing suit against the vendees on the ground that they being collateral of the vendor and owner of the estate had a preferential right. Taj Din father of Muhammad Akram and Muhammad Iqbal (who were co-vendees of the land alongwith Yaqoob and Ishaq) also filed another suit to pre-empt the said sale in favour of vendees namely, Muhammad Akram, Muhammad Iqbal, Yaqoob and Ishaq, alleging that he had superior right being collateral and owner of the estate as well. In the preemption suit instituted by Taj Din, the vendees filed written statements, admitting superior right of pre-emption of Taj Din. However, they contested the other suit filed by Muhammad Rasheed and Ghulam Rasool. Both the suits were consolidated and after framing issues and recording' evidence of the parties the trial Court dismissed both the suits vide judgment and decree dated 27-1-1982. The trial Court held that the plaintiff in both the suits had superior right of pre-emption against the vendees. It was also found that Taj Din's right of pre-emption was superior to the other pre-emptors namely, Muhammad Rasheed and Ghulam Rasool. However, the suits were dismissed as time-barred because' the suits were found to be under-valued and deficiency in the court-fee was not made good within the time allowed by the Court. The joint pre-emptors namely, Muhammad Rasheed and Ghulam Rasool, and the other pre-emptor Taj Din filed two separate appeals challenging the judgment and decree of the trial Court. The first appellate Court held that the suit filed by Muhammad Rasheed and Ghulam Rasool could not be dismissed as time-barred on the ground of deficiency in the court-fee, but maintained the dismissal of the suit filed by Taj Din as time-barred on the ground that Taj Dine had filed the .Suit on 21-9-1974 and not on 2-9-1974 and therefore, on the date of filing of the suit it was time-barred. As a consequence of dismissal of the appeal filed by Taj Din, the pre-emption suit filed by Muhammad Rasheed and Ghulam Rasool was decreed against the appellants. From the judgment and decree passed by the first appellate Court the vendees (appellants) as well as Taj Din filed 2 separate regular second appeals before the High Court. The appeal filed by Taj Din was registered as R.SA. No,60 of 1984. Taj Din died during the pendency of his second appeal whereupon his widow Mst. Aisha Bibi, 2 daughters, Mst. Rasoolan and Iqbal Bibi and son Inayat were substituted as appellants in place of Taj Din. Another application was moved in this appeal under Order 6, Rule 17, C.P.C. Seeking permission of the Court to add further ground of superiority of pre-emptive right on account of contiguity of the land but this plea was not pressed at the final hearing of the appeal. In the connected appeal, R.SA. No, 47 of 1984, the vendees' (appellants) filed application under Order 41, Rule 27, C.P.C. Praying that they may be allowed to produce additional evidence on the issue of superiority of the right of preemption by leading oral evidence.
5. ' The learned Judge in Chambers found that the pre-emptors Taj Din and Ghulam Rasool belonged to one and same category of collaterals while vendees Muhammad Akram, Muhammad Iqbal, Yaqoob and Ishaq and co-pre-emptors Ghulam Rasool and Muhammad Rasheed belonged to the other category of collaterals having equal right of pre-emption. The learned Judge in Chambers also found that Taj Din and Ghulam Rasool as collaterals had superior right of pre-emption as compared to the rights of four vendees (appellants) and the other pre-emptor Muhammad Rasheed, as collaterals of the vendor. The above findings of the learned Judge in Chambers with regard to their right of pre-emption is not disputed before us. The learned Judge in Chambers finally dismissed the appeal of Taj Din holding that as no decree was passed in his favour before 31-7-1986, he cannot get decree of preemption now, in view of law laid down by this Court in case of Government of N.-W.F.P. v..Said Kamal Shah PLD 1986 SC 360 and Sardar All and others v.
6. Muhammad All and others PLD 1988 SC 287. Additionally, the learned Judge also held that the suit instituted by Taj Din was also barred by limitation. In the connected R.S.A. No, 47 of 1984 filed by appellants, it was contended by the vendees/appellants, Muhammad Akram, Muhammad Iqbal, Yaqoob and Ishaq that on account of death of Taj Din they had improved their status and have become at par with pre-emptors namely, Rasheed and Ghulam Rasool and therefore, the right of pre-emption cannot be exercised against them. The learned Judge in Chambers, however, found that in so far pre-emptor Muhammad Rasheed was concerned he belonged to the same category of collaterals to which the vendees belonged but his co-pre-emptor Ghulam Rasool belonged to the category to which deceased Taj Din belonged and, therefore, Ghulam Rasool's right of pre- emption was superior to that of vendees (appellants). It was further held by the learned Judge in Chambers that the vendees having improved their status during pendency of the second appeal, They could not defeat the suit of pre-emption filed by the respondents in view of section 21-A of Punjab Pre-emption Act, 1913 (hereinafter to be referred to as 'the Act' only). As a result of these findings R.S.A. No, 47 of 1984 filed by the vendees (appellants) was dismissed and the judgment and decree passed by the .First appellate Court was maintained. Against the judgment and decree of the learned Judge in Chambers leave was obtained from this Court as aforesaid.
7. ' From the leave granting order in the case, it appears that it was contended by the appellants at the time of grant of leave that appellants Nos. 1 and 2 came at par with respondents after the death of Taj Din during the pendency of the suit. It was, accordingly, contended that the decree in favour of respondents was not in accordance with the law laid down by this Court in the case of Mehr Allah Ditta etc. v. Muhammad All etc. PLD 1972 SC 59. The learned counsel for the appellants concedes that the appellants Nos. 1 and 2 did not improve their status during pendency of the suit but that it was only during the pendency of the second appeal before the High Court that they improved their qualification and were brought at par with the respondents on account of the death of appellant Taj Din in the other connected appeal. It is also conceded by the learned counsel for the appellants that the case mentioned in leave granting order namely, Mehr Allah Ditta and another v. Muhammad Ali and another PLD 1972 SC 59 did not apply in the facts and circumstances. Of the case. The sole question, therefore, falling for consideration in the case is whether the appellants having improved their status/qualifications after the passing of the decree during the pendency of their 2nd appeal before the High Court could defeat the claim of respondents in view of section 21-A of the Act. Section 21-A of the Act reads as follows:-- "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."
8. ' The learned counsel for the appellants contended before us that in view of section 21-A ibid, the vendees (appellants) could defeat the claim of preemptors (respondents) by improving their status at any time after filing of the suit through succession or inheritance. It is, accordingly, 'contended that on account of death of Taj Din the father of vendees (appellants Nos. 1 and 2) the appellants were able to improve their status qua the respondents pre-emptors and as such the decree passed in the pre-emption suit in favour of respondents should have been set aside.
9. ' The learned counsel for the respondents on the other hand contended that the vendees/appellants improved their status after passing of the decree in the suit in favour of respondents, during the pendency of their second appeal before the High Court and as such the improvement in the status of appellants after the date of decree in the suit was of no consequences. In support of his contention the learned counsel for the respondents relied on the case of Zaheer ud Din v. Jalal Din AIR 1944 Lahore 319.
10. ' Section 21-A was introduced in the Act by Punjab Pre-emption (Amendment) Act (Act I of 1944).
11. Before introduction of section 21-A in the ,Act, the Courts in the sub-continent consistently took the view that the vendee is entitled to improve his status, after sale and even after filing of the preemption suit against him through voluntary or involuntary acquisition of property rights.
12. However, there was some divergence of views between various Courts with regard to the date up to which the vendee could improve his status in order to defeat the claim of pre-emptor. The Judicial Commissioner of Oudh in the case of Jagannath v. Kedar and others. AIR 1914 Oudh 228 held that the vendee is entitled to improve his status even after a decree is passed in the pre- emption suit against him and the appellate Court could take notice of such improvement in the status of vendee while deciding the appeal. The Lahore High Court, on the other hand in two Full Bench cases reported as Zahur Din and another v. Jalal Din and others AIR 1944 Lahore 319 and Thakur Madho Singh and another y. Lt. James R.R. Skinner and another AIR 1941 Lahore 433, expressed the view that the improvement in the status of vendee is permissible only up to the date of decree in the pre-emption suit and any improvement in the status of vendee taking place after the decree in the suit would be of no avail to vendee.
13. Section 21-A ibid, provides that any improvement made in the status of a vendee, otherwise than through inheritance or succession, after the institution of a suit of pre-emption shall not affect the right of the pre-emptor. Therefore, by implication it follows that-a vendee is entitled to, improve his status by voluntary or involuntary acquisition of property right up to the date of filing of the suit for pre-emption against him, to defeat the claim of preemptor.
14. ' We are, therefore, of the view that the law-makers by, introducing section 21-A in the Act intended to change the existing state of law only to the extent that a vendee after introduction of section 21- A, ibid, could not take advantage of any improvement made in his status by voluntary acquisition of property right after institution of the suit. The effect of improvement made in the status of the vendee on account of acquisition of property right through succession or inheritance was, however, not affected by section 21-A of the Act. Therefore, in respect of improvements made in the status of a vendee as a result of acquisition of property right through succession or inheritance, the law as it existed before continued to be applicable in spite of introduction of section 21-A in the Act.
15. In the case of Zahur Din and another v. Jalal Din and others (supra), the Full Bench of Lahore High Court while considering the effect of improvement made in the status of a vendee after the decision of the pre-emption suit during pendency of the appeal made the following observations after considering the entire case-law on the subject:-- "Whatever might have been said if the matter were res integra in favour of the view that a vendee could not improve his position after the date of the sale and that the superiority of the pre- emptor's right was to be determined in accordance with the position occupied by the parties on that date, it has been, on the basis of a decision of their Lordships of the Privy Council in 54 All. 189 and for other reasons given in its judgment, authoritatively settled by a Full Bench of this Court in ILR (1942) Lah. 155 that it is possible for a vendee to improve his status effectively up to the time of the adjudication of the suit against him and got it dismissed if on account of that improvement, he becomes either equal to or superior in status to that of the pre-emptor. The question then is whether the vendee can improve his position and defeat the suit for pre-emption during the pendency of an appeal from a decree of dismissal of a suit for preemption on its merits?"
16. ' Learned counsel for the appellant contended that inasmuch as the Court of appeal possessed the same powers as those possessed by the trial Court and an appeal was in the nature of a continuation of a suit and as the right of pre-emptor to obtain the property does not come into being even on the date of the decree but after the price had been deposited by him in Court, the right of pre-emption which is after all a weak right could be defeated by all legitimate means before the matters in dispute have been finally settled by a Court of justice and payment made by the pre-emptor in pursuance of that decision. Reliance was placed in this connection on a decision reported in 25 IC 694 where it was held that: "In determining the right of the pre-emptor or of the vendee the appellate Court may consider any circumstances which have arisen during the pendency of the suit in appeal even though those circumstances may have come into being subsequent to the decree of the first Court." It is true that in a sense an appeal is a continuation of a suit but this is only in a limited sense. It does not however mean that the rights which could be pleaded and enforced before a suit was finally adjudicated by the first Court, could be pleaded as of right for the first time during the pendency of the appeal. It is also true that Courts do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings" to be amended for including prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff's suit would be wholly displaced by the proposed amendment, see (1885-86) 16 QBD 178, and a fresh suit by him would be barred by limitation although in cases where it would not be so barred, different considerations might come into play and a different view might be possible. It cannot be however disputed that ordinarily an appellate Court, can give effect to such rights only as had come into being before the suit had been disposed of and which the trial Court was competent to dispose of.
17. It was held in 10 All. 472, which arose out of a suit for pre-emption, by a Division Bench composed of Sir John Edge and Mahmood, J., that the Court of appeal was only required to see whether the decree of the Court of first instance should have been passed and if the Court of first instance had wrongly dismissed the claim, the plaintiff could not have been prejudiced by her share having been subsequently sold in execution in another suit. In agreeing with the above opinion expressed by Sir John Edge, Mahmood, J. Observed as follows: `I may say as I understand the text of the Hedaya, namely, the text at pages 601 and 602, that I have no doubt that although the Mohammadan Law required that, if by reason of a voluntary sale or other circumstance the pre-emptor before the passing of the decree of the first Court ceases to be the owner of the pre-emptive tenement, then the decree cannot be given in his favour; yet the rule cannot be carried to Courts of Appeal, or Courts of Error, as. The Courts concerned with rectification of the decrees of the Courts below'."
18. ' Similarly, their Lordships of the Privy Council observed in 2 WR 19, in an appeal from the Sudder Dewanny Adawlut at Calcutta as follows:-- "The first and most important question is, whether the decision of the Principal Sudder Ameen was, when pronounced, a correct decision of the issues then pending before him between the then parties to the suit? No subsequent event or devolution of interest can affect this question; because, to give effect to these, should justice require it, would be the office, not of an appeal, but of some supplemental proceedings."
19. ' To more or less the same effect was their Lordships' pronouncement in 1905 AC 383 where agreeing with the following opinion of Jesse! M.R. In (1882) 9 QBD 672 at page 676 that on an appeal strictly so called such a judgment can only be given as ought to have been given at the original hearing, but on a re-hearing such a judgment may be given as ought to be given if the case came at that time before the Court of first instance."
20. ' Their Lordships observed: "That without limiting the extent of His Majesty's prerogative, their Lordships can safely say that it is not the practice of this board to entertain any other appeal than one strictly so-called, in which the question is whether the order of the Court from which the appeal is brought was right on the materials which that Court had before it."
21. ' If no advantage can be allowed to be taken by a party on account of a trial Court's mistake (which it should be deemed to have committed if its conclusions are reversed by a Court of Appeal) and if the scope of the appeal is to be ordinarily limited to ascertain the correctness of the decision of the trial Court, it would seem to follow that events which happened subsequent to the decree passed by the first Court cannot be taken into consideration by an appellate Court for the purpose of depriving the successful party, or the party who should have succeeded, of the decision which was or ought to have been in his favour. From this point of view the consideration of the question as to the extent of the powers vesting in an appellate Court seems to be out of place.
22. They may be the same or less than possessed by the Court of first instance. There is no doubt however that the power conferred on an appellate Court by 0.41, R.33 are very wide; but they cannot be exercised so as to affect a vested right, say, for instance, by virtue of the law of Limitation in 54 MLI 88, and similarly a right which had been declared to be vesting in a pre-emptor by a decree passed in his favour".
23. ' In the case of Azizur Rehman and others v. Muhammad Nawaz PLD 1988 SC 384, this Court approved the following observations of Lahore High Court made in the case of Abdul Khalid v, Abdul Ghani PLD 1969 Lahore 249:-- "In my opinion, the present case is covered by a dictum in another Full Bench case of the former Lahore High Court in AIR 1944 Lah. 172, wherein it was held inter alia that a pre-emptor cannot improve his position after the date of sale or the institution of the suit. Similarly, it was held in AIR 1947 All. 297 that the crucial dates on which the plaintiff in a pre-emption suit must establish his subsisting title are date of the sale, the date of the suit and the date of the decree and this has reference to the property on the strength of which the suit for preemption is brought. There is a clear distinction between the position of a plaintiff pre-emptor and the defendant-vendee in a suit for pre-emption. While the plaintiff pre-emptor who does not possess a superior qualification at the time of the sale cannot avail of the subsequent improvement in his status to give him preference over the vendee, the latter, is placed in a better position, that is to say if the vendee did not possess superior or equivalent qualification at the time of sale but acquires the same before the institution of the suit or at any time after the institution of the suit before the decree of the trial Court, he will be able to defeat the plaintiffs' suit."
24. ' Similarly, in the case of Muhammad Mumtaz v. Muhammad Shafi and 4 others 1992 SCMR 1814 while discussing section 21-A of the Punjab Preemption Act, this Court, made the following observations:-- "According to section 21 any person entitled to the right of preemption under section 15 of the Act can bring a suit for enforcement of his right of pre-emption. 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."
25. In view of the above discussion, we are of the view that after insertion of section 21-A in the Act, a vendee is not entitled to defeat the claim of the pre-emptor by pleading improvement in his status through voluntary acquisition of property right after the institution of pre-emption suit against him.
26. However, if the improvement in the status of vendee takes place by acquisition of property right through succession or inheritance even after institution of the pre-emption suit but before a decree is passed in the suit then such improvement in the status of vendee can be pleaded as a defence to the claim of the pre-emptor. In the present case, the vendee did not improve his status at the time of passing of the decree in the pre-emption suit in favour of the respondent. The improvement in the status of vendees took place during the pendency of the second appeal in the High Court as a result of death of Taj Din. In these circumstances, vendees were not entitled to any benefit arising as a result of improvement in their status due to death of Taj Din during pendency of the second appeal before the High Court. The learned Judge in Chambers, therefore, rightly held that the improvement in the status of vendees/appellants having taken place after the-decree in favour of the pre- emptor in the suit during pendency of second appeal before the High Court, they were not entitled to defeat the pre-emption claim on these basis. No case for interference with the judgment of High Court is made out. Appeal is, accordingly dismissed but in the circumstances of the case, we will make no order as to costs.