' MUHAMMAD ILYAS, J.---Facts leading to this petition for leave to appeal are that two suits for possession of certain land, through pre-emption, were filed before a Civil Judge of Joharabad, District Khushab -- one by respondent No, 1, Muhammad Nawaz and the other by respondent No, 2, Mst. Zainab Bibi. The sale involved in the suits was in favour of the petitioners, Sultan and two others. Both the suits were decreed by the learned Civil Judge in respect of land measuring 156 Kanals and 17 Marlas on the ground that the pre-emptors were collaterals of the vendor, Muhammad Chiragh. The preemptors were allowed time to deposit the pre-emption money and it was directed by the learned Civil Judge that if any of them failed to do the needful in time, the other pre-emptor would have the entire land on deposit of the total price fixed by him.
2. Two appeals, namely, RFA No, 53/1980 and RFA No, 168/1980 were preferred by the petitioners before the Lahore High Court, the first against respondent No, 1 Muhammad Nawaz and the second against respondent No,2, Mst. Zainab Bibi. At the time of filing of these appeals, the District Judge, Khushab, did not have the pecuniary jurisdiction to hear them. Thereafter, his pecuniary jurisdiction was enhanced with the result that the file of RFA No,53/1980 was sent back to the learned District Judge, Khushab, who entrusted the same to an Additional District Judge, Khushab, namely, Mr. Muhammad Mahmood Chaudhry. The file of RFA No, 168/1980, was, however, not returned. The learned Additional District Judge did not find any force in the appeal and it was, accordingly, dismissed.
3. Feeling aggrieved by the judgment and decree passed by the learned Additional District Judge, the petitioners filed second appeal i,e, RSA No,112/1989 before the High Court which was decided by a Division Bench thereof. RSA No, 112/1989 was still pending when in the connected appeal i,e, RFA No, 168/1980, referred to above, the petitioners and Mst. Zainab Bibi entered into a compromise in consequence whereof she relinquished her right of pre-emption. RFA No, 168/1980, was, therefore, accepted, decree passed in favour of Mst. Zainab Bibi set aside and her suit dismissed. She was allowed to withdraw the pre-emption money deposited by her.
4. In RSA No, 112 of 1989, the petitioners had challenged the finding of the two Courts below regarding the pre-emption money also. The learned lower Courts had fixed the pre-emption money at the rate of Rs,133.33 per .Kanal. This finding was reversed by the learned Division Bench and it was held that the pre-emption money shall be paid at the rate of Rs,250 per Kanal.
5. It was argued before the learned Division Bench that with the deposit of pre-emption money by respondent No, 2, Mst. Zainab Bibi, before the date fixed in the decree passed by the learned Trial Court, she had become owner of the land and, therefore, suit regarding the land awarded to her could not be held to have been decreed against the petitioners. This argument did not find favour with the learned Division Bench and it was held that the other preemptor, namely, Muhammad Nawaz would have the entire land measuring 156 Kanals and 17 Marlas on payment of Rs,39,212.50, at the enhanced rate of Rs,250 per Kanal. The learned Division Bench directed him to make up the deficiency of pre-emption money within two months failing which the suit, as a whole, shall be deemed to have been dismissed. The learned Division Bench modified the judgments and decrees passed by the learned lower Courts accordingly.
6. The petitioners are not satisfied with the judgment and decree of the learned High Court in RSA No, 112 of 1989 and have, therefore, made this petition for leave to appeal against them.
7. It was contended by learned counsel for the petitioners that the learned Division Bench had taken an erroneous view while depriving the petitioners of the benefit of the compromise entered into by them with respondent No, 2, Mst. Zainab Bibi. According to him, she had become owner of the land awarded to her by the two Courts below, after her having deposited the pre-emption money in obedience to the direction of the learned Trial Court. In his view, the compromise amounted to transfer bf the said land by her in favour of the petitioners and, therefore, that cannot be allocated to respondent No, 1, Muhammad Nawaz on deposit of pre-emption money for the entire land in suit. Reliance was placed by him on the provisions of Order XLI, Rule 33 of the Code of Civil Procedure, and the case reported as Maulvi Abdul Qayyum v. Syed All Asghar Shah and 5 others (1992 SCM R 241).
8. There is nothing in the provisions of Order XLI, Rule 33 of the Code of Civil Procedure or in the case under report, indicating that a compromise, in the circumstances mentioned above, would amount to transfer of land by preemptor (Mst. Zainab Bibi) in favour of the vendees. Provisions of Order XLI, Rule 33, are of general nature and have no bearing on the question of transfer of land raised by the learned counsel. In the case of Maulvi Abdul Qayyum, it was held that when decree is passed in a pre-emption suit, title of property would transfer to the decree-holder on payment of pre-emption money together with costs, if any, regardless of the fact that the possession of the land is delivered to him or not. We respectfully share this view but would like to add that if an appeal is filed against such decree, the title acquired by the decree-holder as aforesaid, becomes subject to the result of the appeal. What we have just added is supported by the principle of merger of a lower Court's decree in the decree passed by the appellate Court which finds mention in the case of Maulvi Abdul Qayyum. While dealing with that principle, the learned Division Bench of the Supreme Court relied, amongst others, on F.A. Khan v. Government of Baluchistan (PLD 1964 SC 520), in which the following rule was laid down: "Once an appeal is filed, the matter becomes subjudice and when the appellate authority passes an order the order of the original authority disappears and merges in the order of the appellate authority so that there remains in existence only the appellate order."
' In the case in hand, decree in favour of respondent No, 2 Mst. Zainab Bibi had been challenged in appeal before the High Court, and, therefore, title to the land obtained by her under the said decree was subject to the result of the appeal against her.
9. We have gone through order, dated the 17th July, 1985, passed by another learned Division Bench of the Lahore High Court in RFA No,168/1980. It contains following observations regarding the compromise in question:-- "This is an application filed on behalf of Mst. Zainab respondent saying that the parties entered into a compromise and she has received Rs,14,000 in consideration thereof and that the appeal may be allowed. She herself may be allowed to withdraw the total pre-emption money of Rs,10,456.44 deposited in the Trial Court.
' The learned counsel for the appellants naturally has no objection. He claims no costs.
' In view of the above, appeal is accepted, the judgment and decree of the Trial Court are set aside.
The suit of the respondent No, 1 is dismissed. The latter shall be entitled to withdraw the amount deposited in the Trial Court. The appeal is thus disposed of. There shall be no order as to costs."
These observations clearly demonstrate that Mst. Zainab Bibi relinquished her right of pre-emption on payment of Rs,14,000 to her. She did not say that she was transferring the land decreed in her favour to the petitioners for the said amount. Had she said so, the transfer by her could be subjected to another suit for pre-emption. It is noteworthy that her title to the land in question was still sub judice as the appeal, in which the compromise had been effected, was A pending. It was, therefore, not possible for her to alienate the said land in that state of affairs.
10. Looking at what has gone above, we are of the considered view that in the matter before us, one of the pre-emptors, namely, Mst. Zainab Bibi (respondent No, 2) had relinquished her right of pre- emption and had thus paved way for the other pre-emptor, namely, Muhammad Nawaz (respondent No, 1) to get the whole of the land in suit on payment of the total pre-emption money determined by the High Court. Thus, the verdict of the learned Division Bench, which has been taken exception to by learned counsel for the A petitioners does not suffer from any infirmity.
11. Resultantly, this petition fails, and leave to appeal is refused.