The relevant facts are that the appellant and respondent No.8 purchased land through Mutation No.1, dated 13-11-1965. Haji Ghulam Muhammad filed a suit to pre-empt this sale. The suit was contested by the appellant. The trial Court accordingly framed issues, recorded evidence and after hearing arguments dismissed the suit vide judgment and decree, dated 30-9-1971 which was assailed through an appeal before the District Judge. The appeal was accepted vide judgment and decree dated 3-12-1975. Thereafter, the appellant filed R.SA. No.218 of 1976 in this Court. The same was accepted by Mr. Justice Mian Mahboob Ahmad (as he then was) vide judgment, dated 18-5-1985 and the case was remanded to the District Judge for recording findings afresh on all the issues. The District Judge directed the trial Court to record additional evidence and send the same to him. This direction was complied with. The District Judge ultimately accepted the appeal vide judgment and decree dated 12-12-1985. Hence the present appeal.
2. The learned counsel for the appellant argued that the lower appellate Court has failed to appreciate and interpret the provisions of section 21-A of the Punjab Pre-emption Act, 1913 (hereinafter to be referred as the Act of 1913). It is added that the vendees could improve their status during the pendency of the suit through succession. It is explained that during the pendency of the suit Amir father of the vendees died as is clear from Exh.D-8 copy of the Death Register, therefore, the appellant and respondent No.8, his real brother, became owners. The learned counsel in this behalf has referred to Gulzar and others v. Muhammad Anwar and others 1991 SCMR 1142, Abdul Khaliq v. Abdul Ghani PLD 1969 Lah. 249, Muhammad Yaqoob v. Fazal Dad and others PLD 1991 Lah. 197 and Rehmat A.I and 5 others v. Ameer Muhammad alias Ameera 1989 CLC 1103.
The next submission is that the lower appellate Court misread the evidence on record. In this behalf the learned counsel has referred to paras. 8 and 12 of the judgment. He argued that in para 8 the appellate Court has held that the respondents have not placed any document on the record to show that they had improved their status but immediately thereafter recorded that it is not disputed that Amir father of Imam Bakhsh died during the pendency of the suit while in para. 12 it was held that improvement in the status was made by Imam Bakhsh after the death of his father Amir but he had joined with him Atta Muhammad, a stranger, therefore, he could not claim superior right of pre-emption. The arguments on this point are summed up with the submission that the appellant and Imam Bakhsh are real brothers. This fact is patently clear not only from the title of the suit but also Exhs.D-6 and D-7.
3. On the other hand, the learned counsel for the respondents Nos.1 to 4 argued that these are concurrent findings of fact recorded by the two Courts below, therefore, no interference is warranted in second appeal. It is added that the appellant improved his status through gift and not inheritance. The gift is dated 13-1-1969 while the suit was filed on 11-11-1966, therefore, the same did not help the appellant to improve his status. The next submission is that there is no parallel provision to section 21-A of the Act of 1913 in the present Punjab Pre-emption Act, 1991, therefore, the principles of section 21-A are not available to the appellant today. The arguments are summed up with the submission that Ghulam Muhammad, predecessor-in-interest of the plaintiffs was owner of the land as is clear from Exh.P.1, therefore, he had a superior right and the suit had been rightly decreed.
4. The learned counsel for respondent No.8 argued that the vendees could improve their status through succession in view of the provisions of section 21-A of the Act of 1913 and in this behalf he has referred to Muhammad Akram v. Muhammad Rashid PLD 1994 SC 848, Ghulam Rasool v.
Muhammad Latif PLD 1993 SC 52, Mulla Bakhsh v. Muhammad Sharif PLD 1989 SC 278, Muhammad Ismail v. Karamat A.I PLD 1989 SC 474, Sawar Muhammad Sharif v. Makhmool 1991 SCMR 1419 and Muhammad Mumtaz v. Muhammad Shafi 1992 SCMR 1814. It was argued that the appeal would be decided in accordance with the Act of 1913 and not the Punjab Pre-emption Act, 1991. In this behalf, the learned counsel has referred to Sardar A.I v. Muhammad A.I PLD 1988 SC 287, Muhammad Mumtaz v. Muhammad Shafi and 4 others 1992 SCMR 1814 and Ghulam Rasool and another v.
Muhammad Latif and 2 others PLD 1993 SC 52.
5. The learned counsel for respondent No.8 further added that the suit was barred by limitation. In this behalf, he has referred to section 30 of the Act of 1913. It is submitted that the limitation, when sale is effected through mutation, is to be reckoned from the date of possession or date of sanction of the mutation, which ever is earlier. It is maintained that in this case the possession was delivered on 7-11-1965 while the mutation was sanctioned on 13-11-1965, therefore. Limitation shall start from 7-11-1965 and the suit filed on 11-11-1966 was barred by limitation. The learned counsel in this behalf has referred to Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411 and Khurshid Ahmad and 4 others v. Syed Akhtar Hussain Gilani and 4 others PLD 1991 SC 1070.
6. The learned counsel for respondents Nos.1 to 4 while replying to the point of limitation argued that the limitation shall start from the date of mutation and in this behalf he has referred to Muhammad Murad v. Pir Bakhsh and another 1984 CLC 1274. It is added that since the appellant has joined with him a stranger, therefore, principle of sinker would apply and, lastly, that the appellant improved his status through gift so he cannot take benefit of section 21-A.
7. The learned counsel for the appellant while summing up the arguments submitted that the appeal shall be decided in accordance with the Act of 1913. He in this behalf referred to section 34(2) of Act of 1991. He also referred to the judgments in the cases of Bahadur Khan v. Muhammad Yousaf and another 1992 SCMR 2117 and Muhammad Sharif v. Muhammad Sharif 1992 SCMR 1129.
8. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, precedents referred to by the learned counsel for the parties and relevant provisions of the Pre-emption Acts. Now I take up the question whether the appeal is to be decided in accordance with the Pre-emption Act, 1913 or Pre-emption Act of 1991. The learned counsel for the appellant rightly pointed out that the objection is without any merit in view of the provisions of section 34(2) of the Act of 1991, which reads as under:-- "34. Repeal of Act I of 1913.--- The Punjab Pre-emption Act, 1913 (I of 1913) is hereby repealed.
(2) Notwithstanding anything contained in this Act, in the cases and appeals filed under the Punjab Pre-emption Act, 1913 (I of 1913) in which judgments and decrees had been passed before the 1st day of August. 1986, further proceedings if any relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance with the provisions thereof."
1992 SCMR 1129), Bahadur Khan (Supra), Muhammad Sharif (1992 Law Notes (SC) 130), Sardar A.I (Supra) and Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360.
9. Now I take up the point whether. Section 21-A of the Act of 1913 is attracted in the present case or not? It is clear from the record and the .Appellant and respondent No.8, who are the real brothers, purchased the land from the respondents Nos.3 to 5. The appellant was gifted land measuring 4- 1/4 Kanals through gift Mutation No.29, dated 24-9-1969 by his father Amir but the respondent No.8 and others filed a suit for declaration to the effect that the gift is invalid. The suit was decreed vide judgment and decree, dated 2-11-1985, which was not assailed by any party in any forum, therefore, the same became final. The copies of the judgment and decree have been placed on record as Exh.D-6 and Exh.D-7. The result of this decree was that the land once again vested in father of the parties to that suit. The father of the vendees Amir died on 3-5-1974 as per Exh.D-8.
This way the appellant and respondent No.8 succeeded to the land left by their father. Now before proceeding any further it is worthwhile to refer to section 21-A, which reads as under"-- "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."
It is, therefore, clear that any improvement in the status of vendee through inheritance or succession even after the filing of the suit for pre-emption is allowed by the law. This is exception to the general rule as noted by this Court in the case of Rehmat A.I and 5 others (Supra). The learned counsel for the appellant rightly referred to the case of Gulzar and others (Supra) where this Court while hearing second appeal took note of the death of father of one of the vendees by virtue of which he also became owner in the estate and dismissed the suit of the pre-emptor to his extent in view of section 21-A of the Act of 1913 while the Honourable Supreme Court refused leave against this judgment. In present case the suit was for the first time decreed by the lower appellate Court on 3-12-1975 while the vendees had become owners on account of the death of their father on 3- 5-1974. The learned counsel for the plaintiffs argued under some misconception that the appellant claimed improvement in his status through gift, therefore, section 21-A of Act of 1913 has no application. This is against record, The chapter of gift was closed with the decree of the Civil Court Exh.D The appellant claimed improvement in status by inheritance which benefit he was clearly entitled under section 21-A of the Act of 1913.
10. It was argued that the appellant alongwith him has joined respondent No.8, a stranger as vendee, therefore, superior right is also lost. This argument is also utterly misconceived and was raised with reference to the gift. It is clear from the title of the suit and memorandum of appeal before the lower appellate Court filed by the pre-emptors as well as from the judgment and decree Exh.D-6 and Exh.D-7 that the appellant and respondent No.8 are real brothers. The learned counsel for the appellant, therefore, rightly argued that they float and sink together. In face of these facts the principle of sinker is not at all attracted because in this case the appellant is not claiming, as noted in the foregoing paragraph, improvement in status on account of gift but both the vendees improved their status on account of inheritance on the death of their father.
11. The learned counsel for the appellant rightly argued that the judgment of the lower appellate Court is perverse, against record and self-contradictory. The lower appellate Court in para. 8 observed that the respondents had not placed any document on record to show that they had improved their status through inheritance or succession. Then he went on to say in para. 12 of his judgment that improvements in the status was made by Imam Bakhsh after the death of his father but he had joined with him a stranger Ata Muhammad, therefore, he could not claim any superior right of pre-emption. This he observed in face of the documents Exh.D-6 to Exh.D-8. This alone is sufficient to accept this appeal.
12. Now coming to the objection of the learned counsel for the respondent No.8 as to the filing of the suit beyond limitation. The record shows that the learned trial Court framed preliminary issue, on this point which was decided against the defendants vide order,- dated 19-11-1985. It. Was held that vendees-defendants have miserably failed to prove the delivery of actual physical possession prior to the date of attestation of the mutation, therefore, there is no merit in the objection.
13. The upshot of the above discussion is that this appeal is allowed. The result is that the judgment and decree of Malik Lutaf A.I, the then District Judge, Sargodha, dated 12-12-1985 is set aside and that of the trial Court is restored. The result is that the suit of the pre-emptor stands dismissed.
However, there is no order as to costs.