1. MUHAMMAD YUNUS SURAKHVI, J: --This appeal by way of leave has been directed against the judgment and decree of the High Court dated 14-11-1992, whereby the appeal filed by the appellant, herein, against the judgment and decree of District Judge, Mirpur dated 30-11-1991 was dismissed with costs.
2. The precise facts of the case are that appellant-plaintiff filed a suit to pre-empt the sale of the suit land effected by Ch. Karam Dad, respondent No.2, in favour of Haji Muhammad Bashir respondent No.l; through a sale---deed executed on 9-7-1985 and registered on 11-7-1985 on the ground that he being owner in the estate in which the suit land is situated had a prior right of purchase and the same as compared to vendee-respondent who was neither owner in nor resident of the said estate. The learned Additional Sub-Judge, Mirpur after taking necessary proceedings in the case dismissed the appellant--plaintiff's suit on 31-10-1988. The appeal filed by the appellant-plaintiff was also dismissed by the learned District Judge vide his judgment and decree dated 30-11-1991.
3. The plaintiff-appellant, feeling aggrieved with the aforesaid judgment and decree of the District Judge, Mirpur preferred second appeal in the High Court which also met the same fate vide impugned judgment and decree of the High Court dated 14-11-1992.
4. Mr. M.Y. Saraf, the learned senior counsel, arguing on behalf of the appellant-plaintiff raised (he following points:-- (i)That the three pre-emption suits including the one filed by the appellant in respect of suit land purchased by the vendee-respondent during the pendency of the suit were pending at the time of passing of the judgment and decree by the Additional Sub-Judge, whereby the suit of the plaintiff was dismissed on the ground of vendee--respondent's having acquired the status equal to that of the plaintiff --appellant by purchasing land in the estate in which the suit land was situated during the pendency of the pre-emption suit filed against him by the appellant. It is thus contended by the learned counsel that at the time of passing of the judgment and decree by the trial Court the status of vendee-respondent of his being owner in the estate on account of his having purchased some land therein was not indefeasible and as such the suit of the plaintiff-pre-emptor could not legally be dismissed by the trial Court on the ground that the plaintiff has ceased to have superior right of pre-emption as against the vendee-respondent in the concerned estate; (ii)that the learned District Judge did not at all consider and decide the above point despite the fact that the same was raised in the memo. of appeal and argued during the course of arguments; (iii)that the principle of law that the plaintiff-pre-emptor must have a preferential right at the time of sale, at the time of institution of suit and finally at -the time of decree by the trial Court, has been misconstrued by the learned District Judge and the High Court. In the estimation of the learned counsel it is not at all necessary to have a favourable decree by the trial Court; (iv)that during the pendency of appeal in the Supreme Court, the learned counsel for the respondent, submitted an application dated 24-11-1993, praying therein that he may be allowed to argue a law point that as the law of pre-emption has been amended according to which an owner in the village has no preferential right of purchase, as such the appellant's appeal entails dismissal.
5. According to the learned counsel for the appellant the aforesaid application cannot be moved unless the written statement is amended. It was further submitted by the learned counsel for the appellant that on account of the aforesaid application a counter application dated 6-3-1994, has been moved on behalf of the appellant that he being a `Shaft Khalit' in the suit land is still entitled to pre-empt it and the necessary amendment to this effect in the plaint may be allowed.
6. Raja Muhammad Siddique Khan, the learned counsel for the respondents, vehemently opposed the contentions raised by the learned counsel for the appellant and defended the judgments and decrees of the Courts below. He maintained that theAappcllant did not raise any objection with regard to the pendency of the pre-emption suits against the sale executed in favour of the vendee-respondent in the trial Court; as such the suit of the plaintiff was rightly dismissed by the trial Court. The learned counsel further contended inter alia on the ground that the plaintiff/pre- emptor must have a preferential right at three stages. As the plaintiff had no right of preferential purchase at the time of decree of the trial Court so at a subsequent stage he cannot be benefited out of it. The learned counsel also maintained that when the point for pendency of pre-emption suit was raised before the District Judge and the High Court a finding to this objection by both of them has been recorded which hardly calls for any interference by this Court. The learned counsel strenuously argued that in view of the amended law the plaintiff has no right of pre-emption as none of the Courts below passed any decree in his favour. He also maintained that the amended application is not tenable on account of the plea being inconsistent and alien to the original stand taken in the plaint and also being hopelessly time-barred.
7. We have heard the respective contentions of the learned counsel for the parties and perused the record made available with care. We first propose to examine the contentions of the learned counsel for the appellant. So far as the first contention of the learned counsel is concerned, the record reveals that it has no merits. Nothing was placed on record on the basis of which it could be said that the learned Additional Sub-Judge had the knowledge of any suit for pre-emption claimed to have been fled by the pre-emptor or anybody else against the new sale, as such the trial Court could not be held to have acted contrary to law by dismissing the appellant/pre- emptor's suit on the ground that the vendee-respondent being also an owner in the village on the basis of sale-deed executed by one Karamat Khan in his favour on 29-8-1988 and registered on 31- 8-1988 enjoyed equal status with the appellant- pre-emptor regardless of the fact that it is an established principle of law that a vendee during the pendency of the suit and before the decision could improve his status.
8. As regards the argument that the learned District Judge despite the fact that the plea was specifically raised in the memorandum of appeal and argued before him had not been attended to in its true perspective is also found to have no substance for the simple reason that the sale- deed on the basis of which the vendee-respondent was held to have improved his status and the plaintiff and other pre-emptors claimed to have filed suits for pre-emption, still remains intact.
9. Mere filing of pre-emption suits in our estimation would not deprive the vendee of his status with that of the appellant-pre-emptor or other pre-emptors unless and until any of the pre-emptor's suit had been decreed. At the time of the decision of the trial Court none of the pre-emptors had a decree in his favour. It is an admitted position that the suit of the appellant as well as two other suits for pre-emption are still awaiting disposal. So in absence of any decree the vendee cannot be held as having lost his improved status.
10. The next contention of the learned counsel for the appellant, as pointed out in the earlier part of this judgment in chronological order is that the principle of law that the plaintiff/pre-emptor in order to succeed should have a preferential right at the time of sale, at the time of institution of suit and at the time of decree by the trial Court has been misconstrued and misinterpreted by the learned District Judge and the learned High Court. In the estimation of the learned counsel it is not at all necessary for a pre-emptor to have a favourable decree by the trial Court. To elaborate his contention the learned counsel posed two questions:-- (i)supposing that the plaintiff/pre-emptor in fact has preferential right in facts and circumstances of the case, but the Presiding Officer of the trial Court i.e. the Sub-Judge or Civil Judge, as the case may be, happens to be a corrupt official and dismisses the suit?
11. (ii)that the Presiding Officer of the trial Court even otherwise- being incompetent dismisses the suit.
12. So on the basis of the aforesaid hypothesis the learned counsel' for the appellant vehemently contended that in such an eventuality the condition of a favourable decree by the trial Court is by no means logical and rational approach. What is- to be seen is the subsistence of the right at the time of decree of the trial Court. In support of his contention the learned counsel relied on, Kehar Singh v. Mohoman Singh and others (1908 PLR Case No. 128 p. 385), Jai Narain Misra v. Phal Narain (AIR 1948 All. 192) and Baldeo Misi v. Ramlagan Shukul (AIR 1924 All. 82).
13. In case reported as Kehar Singh v. Mahoman Singh and others it was held-- "Pre-emption suit vendee owning land under a prior sale. Loss of the land under a pre-emption decree passed subsequently to the institution of the suit. Since the institution of the plaintiff's suit for pre-emption decree, the land which they had held in village as purchasers under a prior sale and which they claim gave them pre--emption right equal to the plaintiff. Held: that the effect of the decree was that the vendee could not recognise as holding land on the date of sale in dispute in the present case and the plaintiff's suit must be decreed In case reported as `Jai-Narain Misra v. Phal Narain and others' (AIR 1948 All. 192; it was opined:-- "Agra Pre-emption Act (XI of 1992)--Three sales in favour of same v,,ndce--Suits to pre-empt only first two sales. 3rd sale gave indefeasible titic to vendee as to defeat the right of pre-emption. One B executed 3 sale-deeds in favour of J in respect of some property in the same Mahai on 30-9- 1939, 19-1-1940 and 14-11-1940 respectively,`P' brought suit X to pre-empt first sale on 30-10-1940 and suit Y to pre-empt the second sale. The 3rd sale was not pre-empted. The suit of Y was decreed by the trial Court on 8-2-1943 but was dismissed by the High Court holding that: the sale of 14-11-1940 gave indefeasible title to J. In an appeal in suit X which was decreed by the trial Court on 22-9-1942: Held, Ilk at sale f 411940 gave J an indefeasible title as a result of which he , as a co shahrer on the dates on which thesuits of X and Y were decreed. P could not therefore succeed in his suit.
14. In a D.B. case reported as `Baldeo Misri v. S. Ranlagan Shukul' (AIR 1924 All. 82) Sulaiman, J. spoke for the Court:-- "Pre-emption--Right to sue--Right to pre-empt must exist on the date of sale, date of suit and the date of first Court's decree."
15. The plaintiff/pre-emptor in order to maintain a suit for pre-emption must establish his right at three dates viz. the date of sale, the date on which the suit is brought and the date on which the case was disposed of by the first Court. The subsequent loss of the share by the plaintiff i.e. his ceasing to be a co-sharer in no way affects the rights he possessed at the time when the decree in his favour ought to have been passed by the first Court.
16. It is further observed at page 83 of the report that:-- "It is well-settled law that a plaintiff pre-emptor in order to be able to maintain a suit for pre- emption must establish his right to pre-empt on three important dates. He must have. a right of pre-emption at the time when the sale took place otherwise he would have no cause of action at all. He must also have the same right at the time when the suit is brought or else he would have no locus standi to sue. A possible view to take might have been that nothing which happens after the institution of a suit can alter the position of the parties. But it has been held in a number of cases by this Court that it is incumbent on the plaintiff to prove that his right to pre-empt continues up to the date when the decree ought to have been passed in his favour, namely, the date on which the case was disposed of by the first Court. It matters little whether the Court of first instance did actually dismiss or decree his suit. The date of that Court's -decree is the date on which, if the plaintiff's contention is correct, the decree ought to have been passed in his favour."
17. This judgment was based on the decisions reported as `Bhagwan Das v. Mohan Lal' (AIR 1925 All, 421), `Rohan Singh v. Bhau Lal' (AIR 1931 All. 530), `Ram Gopal v. Piari Lal (AIR 1921 All. 441) and `Shanker Lal v. Karari Mal' (AIR 1924 All. 81).
18. The above-referred first two authorities on behalf of the learned counsel for the appellant-plaintiff do not support his case because in the first report it was held that the plaintiff's suit must be decreed as the vendee could not recognise his holding land on the date of sale in dispute whereas in the second report three sales were executed in favour of the same vendee, two sales were pre- empted but the 3rd sale was not pre-empted. It was held that 3rd sale gave indefeasible title to the vendee.
19. So far as the case reported as `Shankar Lal v. Karari Mal' (AIR 1924 All. 81) is concerned it fully supports the case of the respondents rather the case of plaintiff-appellant. In our considered view the aforesaid authorities lay down a rich law and is a complete answer to the points raised by the learned counsel for the appellant and questions Nos. 1 and 2 posed by the learned counsel for the appellant.
20. Raja Muhammad Siddique Khan, the learned counsel for the respondents in answer to the aforesaid contention of the learned counsel for the appellant submitted that it was enjoined upon the appellant to prove his preferential right of purchase at three crucial stages. He placed reliance on `Ghulam Rubani v. Maqbool Khan' (PLD 1971 Azad J&K 68) and Umrao v. Lachhman and others (AIR 1924 All. 448).
21. The first referred authority is a Full Bench case. In the aforesaid authority the interpretation of Government Notification No. 1332-b0/SL/64 dated 15-10-1964 (hereinafter to be called the notification) and published in the Government Gazette on 17-10-1964 was involved. In this notification the Azad Jammu and Kashmir Government was pleased to declare that: `No right of prior purchase shall exist with respect to any sale of land including the built up property in Azad Kashmir territory outside the Mangla Dam affected area, in favour of displaced persons affected by the construction of Mangla Dam.'
22. Although there was a difference of opinion on certain points between the learned members of the Bench but the conclusion arrived at in ultimate analysis was the same and the appeal of the appellant-vendee was dismissed. The learned Judge who dissented from the majority view on certain points involved in the above-referred authority was Mr. M.Y. Saraf, the learned counsel for the appellant (who was then the Judge of the Azad Jammu and Kashmir High Court) who on the relevant proposition spoke as under at pages 93 and 94:-- "In view of unanimous opinion of all the Courts as discussed above, I hold that in cases where the pre-emptor had already secured a favourable decree from the Court of first instance before the 17th of October 1964, the Notifications issued by the Government would not affect his rights under the decree. To that extent the Notification was ineffective and inoperative."
23. In Umrao v. Lachhman and others (AIR 1924 All. 448) the principle enunciated in `Shahkar Lal v.
24. Karari Mal' (AIR 1924 All. 81) was followed.
25. After perusal of the case-law we are of the view that a pre-emptor in order to succeed must have a preferential right at the time of sale, at the time of institution of suit and at the time of decree of the trial Court. Even if the plaintiff's suit was dismissed by the first appellate Court and the plaintiff- - appellant lost his right pending appeal he was still entitled to a decree if otherwise entitled to it. It matters little whether the Court of first instance did actually dismiss or decree the suit of the plaintiff. The date of that Court's decree is the date on which if plaintiffs contention is correct, the decree ought to have been passed in his favour.
26. In the instant case no decree has been passed in favour of the appellant-pre-emptor by any of the Courts below nor his right was subsisting at the time of the decree of the Court of first instance. So he must be non-suited.
27. As regard the last contention, raised at serial No. 4 mentioned in the earlier part of this judgment by the learned counsel for the appellant is concerned, on careful consideration we find it to be of no substance at all. The learned counsel for the respondents during the pendency of this appeal moved an application on 24-11-1993, praying that he may be allowed to argue a law point to the effect as the law of pre-emption in Azad Jammu and Kashmir has been amended according to which an owner in the village has no preferential right of purchase, as such the appeal entails dismissal. The learned counsel for the appellant moved a counter-application dated 6-3-1994, seeking the amendment in the plaint to the effect that the pre-emptor being a `Shaft Khalit' in the suit land is still entitled to pre-empt it.
28. For the proper perception of the matter it would be quite useful to reproduce the amended law:-- "No. 362-66/LD/Leg/93.--The following Act of the Assembly received the assent of President on 13th March, 1993 is hereby published for general information:-- (Act. XIX of 1993)
29. An Act to amend the Jammu and Kashmir Right of Prior Purchase Act, 1993 (Bikrami), Whereas it is exepedient to amend the Right of Prior Purchase Act, 1993 (Bikrami) (Act 11 of 1993) for the purposes hereinafter appearing; It is hereby enacted as follows:-- 1Short title and commencement.--(1) This Act may be called the Jammu and Kashmir Right of Prior Purchase (Amendment) Act, 1993.
30. It shall come into force at once.
31. 2.Amendment of section 14. Act 11 of 1993 (Bikrami).--In the Right of Prior Purchase Act, 1993 (Act 11 of 1993 (Bikrami) for section 14 the following shall be substituted, namely:-- 14.--(1) Subject to the provisions of section 13 the Right of Prior Purchase in respect of agricultural land and village immovable property shall vest-- (a)firstly in Shafi-Sharik; (b)secondly in Shaft Khalit, and (c)thirdly in Shaft Jar.
32. Explanations 1 ..................................
33. 2.`Shah Khalit' means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation.
34. 3.
35. The aforesaid Act reveals that it is law of land having its effect from 13th March 1993. In the said Act the owner of the estate figures nowhere rather three different categories have been mentioned.
36. According to the learned counsel for the respondents as no decree has been passed in favour of the appellant-plaintiff by any of the Courts below uptodate so he has no right of pre-emption under the existing law as well. The learned counsel for the appellant submitted that the respondents should have amended their written statement otherwise they are not supposed to raise the above objection.
37. We have clear view that the respondents need not amend their written statement to raise the above objection. Had the application been not moved by the learned counsel for the respondents at all the objection being the pure question of law and moreover this is the law which is holding the field, should have been taken during the course of arguments. So far as the application seeking the amendment of the plaint and addition of proposed amendment is concerned we are afraid the amendment sought for cannot be allowed at this stage. It is an established principle of law that in pre-emption suit substituting or adding a -new qualification of a pre-emptor cannot be allowed if the prescribed time has elapsed. Moreover, the proposed amendment is totally inconsistent with the original stand taken in the plaint. Our aforesaid view find support from the following citations:-- ---Sardar Khan v. Ghulam Sarwar and 2 others' (PLD 1982 Azad J&K 128) and 'Raj Muhammad v.
38. Munshi Khan' (PLD 1989 SC (AJ&K) 56).
39. So the application dated 6-3-1994, made by the learned counsel for the appellant seeking amendment of plaint and adding a new qualification merits no consideration and is hereby dismissed.
40. The upshot of the above discussion is that finding no force in this appeal it stands dismissed with no order as to costs.