' SHAFIUR RAHMAN, J.---These two appeals have come up for rehearing after review petitions were allowed for the reason that the points on which leave to appeal had been granted remained unanswered in the judgment delivered in appeals.
2. The specific grounds on which leave to appeal was granted are reproduced as hereunder:-- . ...The petitioners had purchased the land by two different transactions, first on 26-11-1974 and the second on 27-2-1975. The first sale took place before the institution of the suit for pre-emption. No separate suit was filed questioning the subsequent sale in favour of the petitioners. Though- the plaint was amended but even in the amended plaint, the sale-deed dated 27-2-1975 had not been challenged. The petitioners had become owners in the estate and improved their status, therefore, the suit could not be maintained.
' It was next contended that the suit was barred by limitation."
3. The factual background of the case is that two sales took place by mutations attested on 28-11- 1973. By one mutation (Mutation No,287) land measuring 32 Canals was sold to Ghayyur Hussain (respondent No,2 in Civil Appeal No,1176-L of 1990). By the other mutation (Mutation No,288) land measuring 90 Canals, 12 Marla's was sold to Abbas Hussain (respondent No,2 in Civil Appeal No,1175-L of 1990). The transferees under these sales further transferred the lands to the appellants.
Ghayyur Hussain transferred the whole land (32 Kam1s) purchased by him to the appellants by mutation attested on 26-11-1974 and Abbas Hussain transferred 50 Canals 12 Marla's out of 90 Canals, 12 Marla's purchased by him by mutation attested on 26-11-1974 and the remainder by registered deed dated 27-2-1975. Two separate suits were instituted by respondent No,1 on 27-11- 1974 i,e, a few days after the sale by the first vendee had taken place but definitely before the second sale which was made by Abbas Hussain in favor of the appellants by registered deed on 27-2-1975. The pre-emptor based his superior claim against the first vendees on the ground that he had become a co-sharer in the estate on the strength of a gift reported to the Patwari on 11-11- 1973 and attested on 28-11-1973 the same day that the pre-empted alienations had taken place.
4. During the course of the pendency of the suit the plaints had been amended and the purchasers prior to the date of institution of the suits were impleaded but not those purchasing by sale pending litigation i,e, the registered sale-deed dated 27-2-1975. The suits were contested on numerous grounds but the Trial Court dismissed the suits on the ground that the gift did not make the pre-emptor an owner in the estate prior to the pre-empted sale. The First Appellate Court reversed the judgment and decree on the ground that a Gift having been completed before the attestation of the mutations, plaintiff had become owner in estate and had superior right. This was maintained in second appeal.
5. As regards the question of limitation sought to be urged, It is stated that the sale which had taken place in favor of the appellants prior to the institution of the suits was challenged and the appellants impleaded after the period of limitation. The learned counsel for the appellants has referred to Raushan v. Makhan (106 Punjab Records, 1907) to contend that the suits had to be instituted within one year and the institution in such a situation could be taken from the date the party was impleaded. This argument suffers from two infirmities if not three.
Firstly, on the legal plane, period of limitation of one year under section 30 of the Pre-emption Act read with Article 10 of the Second Schedule of the Limitation Act relates to enforcement of a right of pre-emption. The right of pre-emption was being enforced against the first vendees and not against the subsequent vendees. It was not the case of first vendees that they had transferred the property or a part of it in recognition of the superior right of the appellants nor was it the case of the appellants that such was the basis of the sale. In the absence of it their implement was not for the purposes of enforcing the right or claim of pre-emption but was for enforcing the relief obtainable against Abbas the first vendee.
'The second legal objection to such an argument is that in the absence of the second sale being in recognition of a superior right of pre-emption of the second vendee what the plaintiff was claiming was enforcement of right of substitution with regard to the first sale which is the essence of the pre-emption claim. In such a situation the second vendee prior to the suit is required to be impleaded only for the purposes of making the decree executable and not for the purposes of enforcing the pre-emption claim.
' Finally, the factual aspect of the matter is that the appellants had before the Trial Court filed an application that they should not have been impleaded at all in the amended plaint as they were not concerned with the pre-emption suit at all and this matter was dealt with by the Trial Court on 9-3-1976 in the following words:-- "The defendants Nos.2 and 3 have filed this application under Order I, Rules 10 and 13 and section 151, C.P.C. For deleting their names from the plaint. The defendants contended that the suit has been filed against the defendant No,1 challenging the sale effected through Mutation No,287 whereas the defendants Nos.2 and 3 had purchased the suit property from the defendant No,1 before the institution of this suit. The defendants Nos.2 and 3 contend that original sale connected with sale in favor of the defendants Nos.2 and 3. The plaintiff contested the application. I heard arguments addressed at the Bar. The earlier sale was effected on 8-11-1973 whereas the suit was filed on 27-11-1974. It was prima facie within time as against the earlier sale. The subsequent sale took place on 26-11-1974 and the defendants Nos.2 and 3 were made a party on 19-9-1975. Thus, the plaintiffs claim against them is prima facie within time. Had the plaintiff been aware of the subsequent sale, there was no fun in suing the defendant No, 1 only. Now since the plaintiff claims his right against the new vendees, also they are necessary party to the suit and there is no bar in impleading them as a defendant. The application is without merits and the same is dismissed with no order as to costs."
A revision and appeal against the same also failed. So, it is clear that the suit with regard to sale in their favor was filed by amending the plaint within a period of one year as held by the Trial Court.
6. As regards the second ground of not challenging the registered sale-deed dated 27-2-1975, this sale had taken place after the suit had been instituted and such assignment does not oblige the plaintiff to implead the purchasers or to challenge the sale vide Rule 10 of Order XXII, C.P.C. It is hit by the doctrine of lies pendent.
7. None of the grounds on which leave to appeal was granted is made out and the appeals are dismissed with no order as to costs.