' By this Regular First Appeal the plaintiff has challenged the judgment and decree of the Civil Judge, 1st Class, Multan, dated 25-10-1974, dismissing with costs his suit for possession of 13nd measuring 404 kanals and 12 marlas in Cbak No, 20 M. R., Tehsil and District Multan, in exercise of his superior right of pre-emption.
2. By a registered sale deed dated 8-1-1973 the land was sold by Mat. Walayat Begum and others in favour of the respondents for an ostensible price of rupees two lakhs. The plaintiff instituted a civil suit within a year of the sale seeking et.Forcement of his statutory right of pre-emption. The suit was contested and the argument which prevailed with the learned trial Court, and which alone is under challenge in appeal, was that there did not exist a right of pre-emption at the time when sale took place because of a notification under subsection (2) of section 8 of the Punjab Pre- emption Act. The aforesaid notification was enforced in 1944 and rescinded on 19th February 1973.
In the trial Court the contest took place on the following issues t- (1)Whether the suit land is not pre-emptible?
(2) Whether the plaintiff has superior right of pre-emption?
(3)Whether the sum of Rs, 2,00,000 was fixed in good faith or actually paid as sale price of the suit land?
(4)If the above issue is not proved, what was the market value of the suit land at the time of impugned sale?
(5)Whether the defendants have spent Rs, 8,000 on improvements and are entitled to recover the said amount from the plaintiff?
(6)Whether the contesting defendants are entitled to the expenses of registration and counsel fee in addition to the sale price?
(7)Whether the contesting defendants are entitled to special costs under section 35-A, C. P. C.?
(8)Relief.
3. The trial Court held that the land was a Government grant and located in an area where the Colonization of Government Lands Act was applicable and therefore the notification under section 8 (2) of the Pre-emption Act was available on the date of sale for successfully warding off any pre- emption claim. But for such a disability the plaintiff's right of pre-emption, if at all it can be so- called, was held superior. The price of the land was actually conceded by the plaintiff-appellant to be rupees two lass, the improvements remained unproved nor the other expenses claimed and on these findings the trial Court held that the plaintiff was not entitled to any relief and the suit was dismissed with costs.
4. The controversy in this appeal is confined to the legal issue, the facts being no longer in dispute nor the finding on any other issue. It was notified in 1944 by Provincial Government, then the repository of power under section 8(2) that no right of pre-emption shall exist in respect of the lands to which Colonization of Government Lands Act was applicable. This land was undisputedly so governed. The sale took place by a registered deed on 8-1-1973. The notification was rescinded on 19-2-1973 and the suit was instituted on 8-1-1974. The appellant's claim in appeal proceeds on the assumption that cause of action is bundle of facts which the plaintiff is required to prove in order to obtain the relief and if any one of the facts so forming the bundle, has arisen at a time when a remedy can be claimed, then the right enures. Yet another approach to the case by the appellant is that section 8 of the Pre-emption Act is in two parts. The first part by its own force, embodying the legislative will as it does, accomplishes the object of extinguishing all rights of pre- emption. As against this subsection (2) contains a provision for delegated legislation whereby an authority other than the Legislature has been empowered to extinguish right of pre-emption by a notification. Therefore, it is urged that the result is not the same. In the latter cases the right of pre- emption is only held in abeyance and the moment an opportunity to enforce that right emerges or appears and a plaintiff satisfies the other requirements of limitation and deposit eta the claim becomes maintainable.
5. In order to fully take note of the contentions of the appellant and to decide them, there are three points which deserve attention. Firstly, what is the nature of the right of preemption. Secondly, what constitutes a cause of action in a pre-emption suit. Thirdly, what is the effect of a notification under subsection (2) of section 8 on sale made and suit instituted.
6. The first question need not be examined in greater detail than is necessary in these proceedings.
The admitted legal position as regards the right of pre-emption is that it is the right of a person to purchase a property before opportunity to purchase it is offered to others. It arises only on a voluntary sale of immovable property. In its primary form it is antecedent to the sale and inheres in the pre-emptor. In its secondary form it is a remedial right enforceable only when a voluntary sale of immovsble property takes place. In its primary phase, the right places the prospective vendor under a duty to first offer the property to those in whom such a right inheres. If they decline to purchase, or give up their preferential right of purchase, or exercise a choice against the purchase the right is lost A altogether. The subsequent sale on same terms to others does not then revive this primary antecedent or dormant right. The next stage is when the sale actually takes place, without recognizing or honouring the primary right. The pre-emptor can then, but only if possessed of primary right, have it enforced, if the other requirements of the law in the matter of limitation, court-fee, deposit of pre-emption money are duly observed. The only way to successfully defeat such a right is to establish its non-existence, extinction, waiver, inferiority, or non-observance of the statutory requirements of limitation, court-fee, deposit etc. From whatever angle one may look at the concept or the right of pre-emption one must admit that it has to be possessed in its primary as well as in its secondary form and if it does not so exist it is only a retroactive legislation which can bring it into existence. The power possessed under section 8(2) being delegated cannot be exercised retroactively. Judged by this standard, the appellant had neither a primary right nor a secondary right of pre-emption on the date the sale was made. Therefore he cannot seek enforcement of any such right on the strength of the rescission of a notification.
7. It is true that the cause of action, as generally understood means bundle of facts which if traversed, a suitor claiming relief is required to prove for obtaining judgment. There is no attempt to deviate from such a definition or description of cause of action. Nevertheless, it does not mean that even if one such fact, a constituent of cause of action is in existence, the claim can succeed. The totality of the facts must co-exist and if anything is wanting the claim would be incompetent. A part is included in the whole but the whole can never be equal to the part. It is also well understood that not only the party seeking relief should have a cause of action when the transaction or the alleged act is done but also at the time of the institution of the claim. For example, there may be a case where at the time when action is brought, there is no right to seek the remedy though the remedy was available when the right was infringed. A suitor is required to show that not only a right has been infringed in a manner to entitle him to a relief but also that when he approached the Court the right to seek the relief was in existence. In pre-emption cases the requirement goes a step further Not only the right should be in existence when the sale takes place and also when the suit is instituted but also till a decree is passed. This third requirement is peculiar to pre-emption claim and it is one of those exceptional situations where events happening after the institution of the suit are also taken into consideration for giving or denying the relief claimed in the suit.
Therefore, though the appellant in this case may have a right of pre-emption at the time of institution of suit and also at the time of the decree of the trial Court if he had no such right at the time when the impugned sale took place he cannot obtain relief from the Court.
8. There is another angle of looking at the legal question raised in this appeal. The parties to the sale enjoyed under the law then in existence, a legal protection from any pre-emptive claim, in view of notification under section 8, subsection (2). The rescission of the notification at a later date could not affect a transaction in all respects completed earlier. The claim made by the appellant would make the rescission operative from a date in retrospect when neither the language of the law nor the powers of the delegate justify such an interference with vested rights of third parties.
9. It is not true to say that there is a material difference in the result achieved by subsection (1) of section 8 of the Pre-emption Act and under subsection (2) of section 8 so far as extinction of the right to pre-empt a sale is concerned., The result is in no manner different. It is only the method of accomplishing or achieving that result which is different. In one case the Legislature has itself made the law inapplicable to the cantonments leaving it to the specified authority to apply it to certain lands by notification. In the other case it has left it to the Government by notification to extinguish the right of pre-emption in respect of certain lands. Once the notification has been validly made, the land is as much immune from pre-emptiive claim as by the force of subsection
(1) of section 8.
10. On none of the grounds this appeal is liable to succeed and is dismissed with costs.