' This judgment will dispose of Regular Second Appeal No,880 of 1977 which calls in question judgment, dated 10-11-197f the learned Civil. Judge, Jaranwala as well as judgment, dated 22-10- 1977 of the learned District Judge, Lyallpur (now Faisalabad).
2. Land measuring 73 Kanals, 10 Marlas owned by Mehnga was sold in favour of Mst. Zubeda Bibi (appellant herein) vide sale-deed, dated 3-10-1974. Faqir Muhammad (respondent) filed a suit to preempt the sale on the ground of being collateral of the vendor and owner of land in the village estate. The suit was resisted on the grounds amongst other that the same was bad for partial pre- emption and was 'barred by the principle of estoppel.
3. After issues an evidence, the learned Civil Judge decreed the suit on 10-11-1976 which decree was affirmed in appeal on 22-11-1977. The two judgments are now subject-matter of consideration in the present appeal.
4. Learned counsel for the appellant argued that the respondents initially filed a suit to challenge the sale which suit was withdrawn and later the suit for pre-emption was filed in respect of land measuring 38 Kanals, 6 Marlas, instead of pre-empting the entire sale of 73 Kanals, 10 Marlas. It was added that respondents purchased 35 Kanals, 4 Marlas for Rs,30,000 on 7-6-1975 from the appellant and agreed not to file the suit of pre-emption and, therefore, the suit was barred by the principle of estoppel.
5. In reply, it was argued that the appellant in recognition to superior right of pre-emption of respondent transferred land measuring 35 Kanals, 4 Marlas through registered sale-deed and promised to transfer the remaining land which She had failed; hence the necessity of filing the suit arose. It was added that sale-deed did not indicate of any relinquishment of right qua the remaining land. It was argued that the appellant herself broke the transaction and the suit was filed only for the land which was available and there was no occasion to sue for the land which the appellant had already transferred to the respondent. .
6. On consideration of evidence on record and also the legal position which emerges therefrom, one finds that both the objections raised in appeal are devoid of merit and the appeal is without substance.
7. Admittedly, the initial sale by Mehnga in favour of the appellant was for land measuring 73 Kanals, 10 Marlas. Out of this land, the appellant herself sold the land measuring 35 Kanals, 4 Marlas in favour of respondent through sale-deed, dated 7-6-1975, Exh.P./2. This sale was effected in consideration of Rs,32,000. The vendee has right to transfer the land in favour of the preemptor in recognition of his right even before the filing of the suit. In this case, the appellant opted to transfer 35 Kanals, 4 Marlas of land to respondent and, thus, broke up the transaction. She was left with 38 Kanals, 6 Marlas. According to respondent, the appellant had agreed to transfer the remaining land as well but since she delayed the matter and limitation was likely to expire, she filed the suit for pre-emption to get the remaining land. The suit was filed to preempt the land which was left with the appellant/vendee. It is true that the right of pre-emption is the right of substitution and the pre-emptor must take the whole bargain but where the vendee brakes the integrity of the transaction, then the preemptor Would he at liberty to pre-empt the residue, Learned counsel for the appellant relied on PLD 1972 Peshawar 115 which also confirms the rule that the right of pre- emption is, in essence, one of substitution and that the pre-emptor must take over the whole bargain and cannot forgo the par( thereof and make pick and choose. In Tirath Ram v. Dina Nath and others (AIR 1933 Lahore 774(2)), it was observed that where the vendee sells property in equal shares to other persons who also claim to be pre-emptors thereof and the bargain was split up, then the principle that a pre-emptor whose right exists over the entire property must take over the whole bargain and is not entitled to pre-empt only a part will have no application as the vendee himself has broken up the bargain and sold the property to two pre-emptors. In AIR 1924 Lahore 431, it was observed that the principle of denying right of pre-emption as to the whole property sold is that by taking up the bargain, the preemptor would be at to take the best of all portion and leave worst part of it with the vendee but where the vendee himself had broken up, the property sold by parting with a portion of it, he has no grievance when the . Pre-emptor sued him for the remainder.
It was observed that this will not be a case where the plaintiff is seeking to pick and choose part of property but the vendee himself parted with a portion and does not suffer in any way whatsoever by the preemptor in not suing for the whole.
8. Keeping in view the principle, laid in the above cases, when the present case is examined, one finds that the original contract in favour of appellant was for 73 Kanals, 10 Marlas of land, she herself sold 35 Kanals, 4 Marlas to respondent through sale-deed Exh.P./2 in recognition of his superior right of pre-emption and was left with only 38 Kanals, 6 Marlas for which the respondent was required to file the suit for pre-emption. In doing so the respondent cannot be said to have hit the principle of partial pre-emption and made pick and choose. In fact, the preemptor intended to substitute for the whole bargain, got a part of it outside the. Court and approached the Court for the left over part and in this way the real intention was to substitute the vendee and not to give up any part of the bargain. The bar of partial preemption was not thus attracted in this case.
9. As regards the plea of estoppel, the sane is not tenable. The appellant claimed that the respondent had relinquished his right qua the remaining part of the property by purchasing the pare of the land but this is not supported by the sale-deed. The sale-deed does not indicate or gives an impression that the respondent had relinquished his right of pre-emption for the remaining part of the land purchased by the petitioner. Relinquishment could have been proved through cogent evidence which was missing in this case. This being so, there is no force in the plea of estoppel which was rightly repelled by the two Courts below. The Courts below examined the entire evidence and also took note of the true legal position and the findings recorded by them do not suffer from misreading of evidence or error of law.
10. The superior right of pre-emption, having been proved without reasonable doubt, the right having not been disputed, the plea of relinquishment having not been established and the objection of partial pre-emption being without substance, the suit was correctly decreed to which no exception can be taken. Resultantly, this appeal being devoid of merit is dismissed.