MIAN NAZIR AKHTAR, J.- This R.SA. Arises out of a suit for possession through pre-emption filed by Boota respondent on 15.7.1968 in the court of Civil Judge, Sialkot Camp-at-Pasroor. The disputed land measuring 10 Kanals and 19 Marlas (increased to l2 Kanals and 11 Marlas after consolidation) was sold by Mst. Rasool Bibi to the appellants through a registered sale deed dated.7.7.1967 (Ex D1).
Respondent No.1 claimed superior right on the ground of being collateral of the vendor and a co- sharer in the joint khata.
2. The suit was resisted by the present appellants who filed written statement in the court which gave rise to the following issues:-
1. Whether the plaintiff has a superior right of pre-emption than that of the vendees? OPP.
2. Whether Rs.5,000/- the sale price of the suit land was bona-fide fixed as actually paid? OPP
3. If not, what is the market value of the suit land? OPP.
4. Whether the suit is the barred? OPD.
5. Whether some of the Khasra Nos. Were not sold by the vendor, if so, what are those numbers?
OPD.
6. Relief.
After recording evidence of the parties the trial court held on issue No.1 that Boota respondent No.1 was a co-sharer in the joint khata and enjoyed superior pre-emptive right. However, his claim of being collateral of the vendor could not be proved. The trial court decreed the suit in favour of respondent No.1 subject to payment of Rs.5,(XX)/-, vide judgment and decree dated 23.2.1970. The appellants filed an appeal which was dismissed by the learned District Judge, Sialkot vide judgment and decree dated 25.11.1970.
3. The appellant's learned counsel contends as under:-
(i) The joint khata out of which the land was sold was partitioned through consolidation proceedings and the disputed land was separated and assigned a different khata No. It no longer remained a joint khata so as to be subject to pre-emptive right based on the ground of ownership in the joint khata. In support of his contention places reliance on the case of Qaim Din Vs Said Ahmad and another (PLD 1967 Lahore 1171).
(ii) At the the of the sale of the disputed land Boota respondent No.1 was not a co-sharer in the joint khata. The sale took place on 7.7.1967 and Boota became a co-sharer on the basis of a consent decree dated 23.1.1969.
(iii) The record does not establish the respondent's relationship with Taj Din for supporting the view that immediately with the death of Taj Din, Boota respondent No.1 got his due share in the inheritance of the deceased and thus became co-sharer in the joint khata. Unless Boota is recorded as co-sharer in the revenue record he cannot claim superior pre-emptive right qua the disputed property.
4. On the other hand, respondents' learned counsel submits as under:-
(i) Respondent No.1 was co-sharer in the joint khata and his pre-emptive right remained intact notwithstanding the partition of the joint khata through consolidation proceedings. By virtue of the provisions of section 16 of the W. Pakistan Consolidation of Holdings Ordinance 1960, the land allotted goes with the encumberances including the right of pre-emption claimed by another person. In this connection he places reliance on the case of Qaim Din Vs. Said Ahmad and another(PLD 1967 Lahore 1171), Rashda Begum and another Vs. Ghulam Farid Shah and others(PLD 1973 Lahore 637), Muhammad Akmal Vs. Muhammad Bashir (1982 CLC 279) and Pir Bakhsh V Mst.
Anwar Mai (1991 MLD 464).
(ii) The suit culminating in the consent decree dated 23.1.1969 was based upon his claim of being an heir of Taj Din, deceased. The defendants in the suit were Mst. Rasoolan Bibi, widow and Mst.
Umer Bibi, sister of the deceased and others who admitted the claim of respondent No.1. Once it is established that respondent No.1 is the heir of Taj din then he will be deemed to be an owner in the khata of the land belonging to the deceased. Therefore, he would be entitled to a decree in his favour as being a co-sharer in the joint khata.
5. After hearing learned counsel for the parlies, I find that arguments of the respondent's learned counsel carry considerable weight. The disputed property was sold by Mst. Rasool Bibi out of the joint khata which remained subject to pre-emption notwithstanding its partition through consolidation proceedings. The consolidation operations do not disturb the pre-existing rights or other encumberances in respect of the land allotted during consolidation operations. The pre- emption suit had to be decided on merits in respect of the disputed land notwithstanding the commencement of consolidation proceedings. After the decree is passed in favour of the pre- emptor, he can chase the land allotted to the judgment debtor during consolidation proceedings in lieu of the pre-empted land. For this purpose the pre-emptor is not required even to seek amendment of the plaint or modification of the decree. I am fortified in my view by judgments in the cases of Rashida Begum and Muhammad Akmal relief upon f by the respondent's learned counsel. In the former case it was held, "Even the consolidation of Holdings Ordinance does not destroy the right of pre-emption and the allotment of property made under that Act will be subject to that right at least to the extent that the property obtained in lieu of pre-emptiable property will be subject to the right of substitution of the pre-emplor for the vendee who has become vested of ownership rights to that land by virtue of section I6 of the consolidation Ordinance. The property in the hands of the vendee can in this ' spanner be followed by the pre-emptor". A similar view was expressed in the later case. Even in Qaim Din's case relied upon by the petitioner's learned counsel it was held, "There is nothing in the Consolidation Act to show that after it is put into operation in any village or estate, then it will destroy the vested rights of the persons or will cause them to lapse.
A plain reading of the Consolidation Act will show that it in no was repeals the pre-emption at expressly or even impliedly. The rights which arc created by the Pre-emption Act, are thus in no way destroyed by the Consolidation Act. If a statute gives a right and also provides a machinery and method lor the enforcement of that right, then unless a strong proof is given of that right or remedy having been taken away, the Courts will be inclined towards the continuation of that right".
Therefore, the creation of O different khatas after consolidation operations is inconsequential so far as the j right of the pre-emptor is concerned. The argument of the petitioner's learned counsel that at the lime of sale of the disputed property which look place on 7.7.67. Boota respondent No.1 was not a co-sharer in the joint khata and that he became a co-sharer subsequently on the basis of consent decree dated 23.1.1969, has no force, in the consent decree, Boota's right to claim 1/3rd share in the inheritance of Taj din deceased was recognized, hence he had become co-owner in the joint khata immediately on the death of Taj Din which had taken place before the sale of the disputed land. The mere fact that he was not recorded as co-owner in the joint khata in the revenue recorded did not make any difference. The Appellate Court has rightly held that Boota respondent became a co-sharer in the joint khata on the death of Taj Din and that subsequent change of khata numbers during consolidation proceedings did not affect his status.
6. For the foregoing discussion, I find no merit in this appeal which is dismissed, leaving the parties to bear their own costs.