' MANZOOR HUSSAIN SIAL, J.---One Rehmatullah (now deceased and represented by his legal heirs) by leave of this Court assailed the judgment and decree dated 29-9-1991, of a learned Single Judge of Lahore High Court (Bahawalpur Bench) whereby he dismissed appellant's Regular Second Appeal No,15 of 1976.
2. The dispute in this case relates to agricultural land measuring 32 Kanals situate in village Bhutta Wahan, Tehsil Sadiqabad, District Rahim Yar Khan. Ghulam Rasool and his two sisters, namely Mst.
Ghulam Fatimah and Mst. Ghulam Sughra sold the disputed land to Rehmatullah, for Rs,11,600 vide Mutation No,693 sanctioned on 26-3-1970. Abdul Karim, respondent herein, filed suit for possession, invoking his right of pre-emption on the ground that he is son of Ghulam Rasool and nephew of Mst. Ghulam Fatimah and Mst. Ghulam Sughra, vendors. The suit was resisted by the vendee/appellant. It was pleaded, in the written statement, that the suit was filed collusively at the instance of vendors, the pre-emptor had waived his right of pre-emption as he was present at the time of sale. The appellant also claimed compensation for the improvements made by him on the land.
' The learned trial Judge framed five issues, arising out of the pleadings of the parties, recorded evidence led by them and held that the preemptor/respondent had superior right of pre-emption, he did not waive his right of pre-emption, the suit was not collusively filed, at the instance of the vendors, no improvement was made by the vendee on the land in question, and decreed the suit on 17-4-1975.
3. Rehmatullah vendee challenged the trial Court's decision in appeal, which was dismissed on 2- 2-1976, by the District Judge, Rahim Yar Khan. He preferred second appeal, in the High Court, which also failed on 29-9-1991, with the result that judgments and decrees passed by the learned lower Courts were maintained.
4. On 29-6-1992, leave to appeal was granted by this Court to consider the proposition couched in the following' words:- "Findings of all the three Courts below are concurrent and against the petitioner and it appears that these filings are correct and well founded and in accord with evidence brought on the record.
However, we grant leave to examine the following question which is of public importance:-- ' Whether in respect of sale of agricultural land by three co-owners, a brother and two sisters, brother's son can inherit the land on the death of the two sisters so as to maintain suit for pre- emption of one-half share of two sisters, the vendors, under clause Thirdly of section 15 of the Punjab Pre-emption Act, 1913'."
4-A We have heard, learned counsel for the parties. At the very outset, it is significant to point out that, the appellant vendee, is utter stranger to the vendors and the respondent pre-emptor is an heir of the vendors. The appellant did not contest the superior right of the respondent, to pre-empt the sale and issue No,3 framed in this respect was therefore decided against the vendee/appellant.
' The only contention raised by learned counsel for the appellant, was that, the words "order of succession" occurring in section 15 of the Pre-emption Act, 1913, implied exclusion of pre-emptor who is remoter in the line of succession to the vendors, than others, notwithstanding, non-exercise of their right of pre-emption by instituting regular suit. This contention has no substance. As pointed out, hereinbefore, the pre-emptor is heir as residuary of the lady-vendors and on their demise, he is to inherit with others, therefore, he could maintain suit, even if other heirs of the ladies did not lodge suit for preemption. In the instant case, the vendee being utter stranger, the entire body of heirs, failing them, two or more thereof or even an individual could sue for the whole bargain. This position is visualized by section 13 of the Act itself, which is headed as, joint right of pre-emption, how exercised, and reads:-- "Whereas, according to the provisions of this Act a right of preemption vests in any class or group of persons, the right may be exercised by all the members of such class or group jointly, and if not exercised by them all jointly, by any two or more of them jointly, and if not exercised by any two or more of them jointly severally, i,e. Individually."
5. The order of succession, mentioned in section 15 of the Pre-emption Act is to be considered only in competition with vendee and the pre-emptor and not in those who did not file the suit. In Muhammad v. Muhammad Yar (PLD 1986 SC 231) while referring to the case Jalal Din v. Saeed Ahmad and others (PLD 1979 SC 879) it was held:-- "Pre-emption being a statutory right enforcement of which calls for filing a suit, it cannot be said that even, if suit is not filed still his right has to be maintained or given effect to in his absence, without his assertion or desire not by passing a decree in his favour, but by precluding suit of others exercising that right and filing a suit for its enforcement."
6. In the instant case, the contest is not between the heirs of the vendors to establish the individual superior right of pre-emption, rather it is between an heir of the vendors and a stranger to them.
The pre-emptor respondent is admittedly an heir of the vendors and had superior right of pre- emption, his suit was, therefore, rightly decreed by the trial Court and the decree passed in this behalf was maintained up to the level of the High Court.
7. In the result, this appeal fails, it is accordingly dismissed with no order as to costs.