SAYED NAJAM-UL-HASSAN KAZMI, J.- This civil revision calls in question, judgment and decree, dated 8-9-1982, of the leamed Additional District Judge Sialkot, whereby the appeal of respondents was allowed and suit for preemption was dismissed.
2. A suit for possession through pre-emption was, filed by the petitioners to pre-empt sale of land, effected through sale deed, dated 11-2-1977, on the ground of being co-sharers in the khata. The suit was resisted by the respondents on the ground amongst others, that respondents No. 1 to 4 were also co-sharers.
3. After issues and evidence, the learned trial Court decreed the suit, observing, that the vendees having associated a stranger, had lost their right of defence by application of doctrine of sinker and thus they stood divested of their pre-emptive qualification.
4. In appeal two applications were filed, one by respondents No. 1 to 4 claiming to have purchased the share of respondent No. 5 and the other by respondent No. 5 confirming the sale of her share in favour of the purchasers. In the applications, it was claimed, that during the pendency of the appeal the oral sale was made, by respondent No. 5 Inayat Hussain. The leamed Additional District Judge took the view, that the respondents could remove disqualification during the pendency of the suit u/S. 21-A of the Punjab Pre-emption Act of 1913 and that the appeal was continuation of the suit, therefore, according to the Additional District Judge, the disqualification stood removed and the vendee possessed equal pre- emptive qualification with the petitioner. As a result of the same, the suit was dismissed.
5. Leamed counsel for the petitioners argued, that any improvement in qualification or removal of disqualification, could at best be made before the institution of the suit. He argued, that u/S. 21-A of Punjab Pre-emption Act. The vendees, respondents No. 1 to 4, by joining of stranger vendee respondent No. 5, had lost the right of pre-emption as co-sharers and they could improve their status by removing the disqualification only before the institution of the suit and that the improvement allegedly made after the decree and during the pendency of the suit could not be entertained in law. It was submitted, that even before insertion of section 21-A, the previous view expressed in AIR 1944 LHR 319 was that the vendee could improve his status before the final adjudication of the suit by the learned trial Court but after the amendment, the improvement made subsequent to the filing of the suit was not permissible. He argued that even if the amendment is not kept in view the respondents had no case for removal of disqualification as admittedly, the oral sale by respondent No. 5 vendee is claimed to have been made after the decree and during the pendency of the appeal. It was, therefore, argued, that the order passed by the learned first Appellate Court is against law. Conversely, leamed counsel for the respondents supported the judgment of the Appellate Court and argued, that the improvement of qualification or removal of disqualification could be made during the pendency of the appeal as well.
6. The submissions made by learned counsel for the petitioners have considerable force. Section 21-A of Punjab Pre-emption Act 1913 provide that any improvement, otherwise than the inheritance or succession made in the status of the vendee after the institution of the suit shall not affect the right of the pre-emptor. The section reads as follows:- "Insertion of new section in Punjab Act, I of 1913.- Any improvement, otherwise than through inheritance or succession, made in the he 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."
7. Admittedly in this case, no improvement in status or removal of disqualification is claimed on the basis of inheritance or succession, rather, the improvement is claimed by self acquisition of respondents through an oral sale after the decree had been passed in favour of the pre-emptor. In Ghulam Rasool and another v. Muhammad Latif and 2 others (PLD 1993 SC 52). It was held that improvement otherwise than through inheritance or succession made in the status of vendee after the institution of suit, will be of no effect and section 21-A of Punjab Pre-emption Act was added to restore "status quo" in case of pre-emption suits wherein the vendee sought to improve his position by means of a voluntary acquisition of right of property after the institution of suit. In the said case, following Rule was laid down by the Supreme Court.
"6. Section 21-A of the Punjab Pre-emption Act was introduced by Punjab Act I of 1944. It provides as hereunder:- "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."
"7. The statement of objects and reasons published in the Punjab Gazette, dated 15th March, 1944 while notifying the bill proposing this amendment mentions as hereunder:- "Section 21-A is being added to the Punjab Pre-emption Act to restore the status quo in the case of pre-emption suits wherein the vendee seeks to improve his position by means of a voluntary acquisition of right of property made after the institution of the suit."
"8. Two expressions relevant to the case in hand contained therein are "status quo" and "voluntary acquisition" both relatable to vendee in pre-emption suits. Status quo will imply fixing the status of the vendee as on the date of the institution of the suit. Secondly in the case in hand, there is voluntary acquisition of right of property by the vendee after the institution of the suit. Besides, riddance of a disqualification or a disability also amounts to change in the status quo, an improvement in status. The word "Status" in the context of Pre-emption Law means position or locus standi to pre-empt a sale to compete with the pre-emptor or to defeat the rights of a pre- emptor. The word is pervasive in scope to cover and include even the shedding off a disability."
8. In the case of Muhammad Akram and 3 others v. Muhammad Rashid and 2 others (PLD 1994 SC 848), it was held that vendee is not entitled to defeat the claim of the pre-emptor by pleading his improvement in his status through voluntary acquisition of right after the institution of a pre- emption suit. If the improvement in the status of vendee takes place by acquisition of property rights through succession or inheritance, even after institution of pre-emption suit but before the decree is passed, then such improvement in the status of vendee can be pleaded as a defence to the claim of pre-emption. While dealing with the scope and affect of section 21-A of Punjab Pre- emption Act 1913 it was observed as follows:- "ln view of the above discussion, we are of the view that after insertion of section 21-A in the Act, a vendee is not entitled to defeat the claim of the pre-emptor by pleading improvement in his status through voluntary acquisition of property right after the institution of preemption suit against him.
However, if the improvement in the status of vendee takes place by acquisition of property right through succession or inheritance even after institution of the pre-emption suit but before a decree is passed in the suit then such improvement in the status of vendee can be pleaded as a defence to the claim of the pre-emptor. In the present case, the vendee did not improve his status at the time of passing of the decree in the pre-emption suit in favour of the respondent. The improvement in the status of vendees took place during the pendency of the second appeal in the High Court as a result of death of Taj Din. In these circumstances, vendees were not entitled to any benefit arising as a result of improvement in their status due to death of Taj Din during pendency of the second appeal before the High Court. The leamed Judge in Chambers, therefore, rightly held that the improvement in the status of vendees/appellants having taken place after the decree in favour of the pre-emptor in the suit during pendency of second appeal before the High Court, They were not entitled to defeat the pre-emption claim on these basis."
9. Considering the facts of this case, in the light of rule laid in the cases noted supra, it is observed, that no improvement of status through removal or disqualification was claimed till the decree was passed by the leamed trial Court. The decree in this case was granted on 28-2-1981 while the oral sale was claimed to have been made by Inayat Hussain respondent No. 5, vendee in favour of Muhammad Akbar, Muhammad Aslam, Dilawar Hussain and Ashiq Hussain, respondents No. 1 to 4 vendees, during the pendency of the appeal. This being so, the improvement alleged to have been claimed during the pendency of appeal was of no consequence and in doing so, the respondents could not defeat the pre-emption claim of the petitioners. The view taken by the leamed Appellate Court is contrary to the provisions of Section 21-A of Punjab Pre-emption Act and also the rule laid by the Supreme Court. In consequence, the judgment of the leamed Appellate Court, being against law cannot sustain.
10. For the reasons above, this revision petition is accepted, the impugned judgment and decree of the leamed Additional District Judge dated 8-9-1982 is set aside and the by the leamed trial Court is restored. The balance preemption money, in terms of the decree of the leamed trial Court, if not deposited before, shall now be deposited by the petitioners within two months. No order as to the costs.