' The appellant purchased the suit land from one Fazal Ali son of Feroze Ali vide a decree, dated 6- 12-1969 for a consideration of Rs,40,000. Pehlawan Khan son of Mardan Ali filed a suit for possession of the suit land by, pre-emption on the ground that he is the collateral of vendors and co-sharer in the suit land Patti and an owner in the Deh. The suit was filed on 5-12-1970. While the suit was pending, the said Pehlwan Khan died on 28-1-1973. The factum of the death was reported to the Court. A list of legal representatives of the deceased Pehlwan Khan was also filed by one Saif Ali, the attorney of the deceased plaintiff. This application was filed on 12-2-1973. The case was adjourned from time to time. Thereafter, on 7-3-1973 an application was filed on behalf of Muhammad Sadiq son of Pehlwan Khan praying that he be allowed to pursue the suit. A reply was filed which is at page 105 of the trial Court record wherein it was mentioned that the suit has abated. This application came up for hearing on 15-11-1973 when the learned trial Court stated in its order that the counsel for the defendant had no objection in case the application is allowed.
Consequently, the learned trial Court ordered that an amended plaint be filed. Thus, amended plaint was filed on 22-12-1973. An amended written statement was filed on 9-1-1974. On the same day the following issue was framed and was treated as preliminary:-- ' Is suit for partial pre-emption in its present form for non-joinder of all the legal heirs, representatives of Pehlwan Khan deceased plaintiff within time ? OPD.
' On 13-2-1974 the counsel for the parties made a statement that they do not wish to lead any evidence on the said issue. From the record it appears that on 18-2-1971 the following issues were framed:--
(1) Whether the suit is for partial pre-emption? OPD.
(2) Whether the suit is not maintainable for the reason that it has been filed during the pendency of previous suit for pre-emption of this very land by the plaintiff? OPD.
(3) Whether the suit is not properly valued for the purpose of court-fee and jurisdiction, if so what is its proper valuation? OPD.
(4) Whether the plaintiff has superior right of pre-emption against the defendant? OPD.
(5) Whether a sum of Rs,40,000 was fixed in good faith or actually paid? OPD.
(6) If issue No,5 is not proved, what is the market value of the suit land?
' The said additional issue framed on 9-1-1974 was numbered as 6-A. The deceased plaintiff had concluded his affirmative evidence on 27-4-1971. The defendant/petitioner had concluded his evidence on 10-10-1971 and on the same day the plaintiff's evidence in rebuttal was also recorded.
Later on the file was transferred to another learned Civil Judge. Vide judgment and decree, dated 26-4-1976, learned Civil Judge, Gujrat decreed the suit declaring that the suit is being decreed in favour of the legal heirs of the deceased. The suit was so decreed subject to payment of Rs,40,000.
An appeal filed by the appellant was heard by a learned Additional District Judge, Gujrat, who dismissed the same on 13-6-1978.
2. Learned counsel for the appellant argues that the right of pre-emption is not heritable and as such the suit abated on the death of Pehlwan Khan, the original plaintiff. Further submits that the present respondent could not claim the entire suit land. Learned counsel for the respondent, on the other hand, argues that Pehlwan Khan had died after instituting the suit and as such under Order XXII, Rule 3, C.P.C. As it existed on the statute book on the date Pehlwan Khan died, there is no question of any abatement. Further argues that the right of pre-emption is heritable.
3. Record of the learned trial Court had been summoned and I have gone through the same, with the assistance of the learned counsel for the parties. Before me the only issue needing adjudication is afore-reproduced issue No,6-A as to what is the effect of death of Pehlawan Khan, the original plaintiff after filing the suit. Sh. Naveed Sheharyar, learned counsel for the appellant relied on the case of Azizur Rehman and others v. Muhammad Nawaz (PLD 1988 SC 384) later followed in the case of Muhammad Younas v. Khushal (1989 SCMR 69). In the case of Azizur Rehman the facts were that a person who had filed the suit had inherited the land, on the basis whereof he claimed superior right of pre-emption, after the date of sale. His contention was that since his father had a right of pre-emption on the basis of the ownership of the same land and as such alongwith the land he had inherited the right of pre-emption as well and can exercise the same in respect of the sale in question. The said suit was filed under the provisions of N.-W.F.P. Pre- emption Act, 1950. It was decreed by the learned trial Court but dismissed by the First Appellate Court. The learned Peshawar High Court set aside the judgment of the Appellate Court and restored that of the trial Court. The vendee filed an appeal in the Supreme Court. With reference to the case of Faiz Muhammad v. Chaudhary Fajar Ali Khan and another, Plaintiffs and others (AIR 1944 Lahore 172), Chhajju and others v. Jai Dayal and others (AIR 1947 Allahabad 297) and Abdul Khaliq v. Abdul Ghani (PLD 1969 Lahore 249), it was held that since the plaintiff/pre-emptor in the said case did lack the necessary qualification on the date of sale the pre-emption suit must fail and the appeal was allowed. Learned counsel for the appellant laid much stress on a passage quoted from the case of Muhammad Ismail v. Abdul Rashid and others (AIR 1956 Allahabad 1) in which case the question was examined in the context of the Hanfi School of thought and it was held that the right of pre-emption does not survive to the heirs after the pre-emptor dies before obtaining a decree in his favour. In my humble opinion the said passage was quoted with reference to the observations made in the judgment to the effect that section 6 of the N.-W.F.P. Pre- emption Act specifically lays down that the right of preemption shall exist subject to the provisions and limitation contained in the Act, therefore, it is not possible to examine the question in the light of Muhammadan Law beyond the text of the Act itself. It is, thus, apparent that the said passage quoted from the case of Muhammad Ismail was not made the basis of the ratio of the judgment, but it was the fact that the pre-emptor in the case lacked a right of pre-emption on the date of sale. So far as the other judgments referred to in the said case of Azizur Rehman are concerned, the same are also to the effect that whereas the vendee by statutory permission can improve his status even if the sale till the time the suit is instituted, the pre-emptor has no such privilege and he is to establish that he was qualified to file a suit under the relevant law on the date the same took place. Besides the facts of the said case, as reproduced above, also show that there was no doubt that the pre-emptor in the said case had no right on the date of sale and had relied upon the ownership of the land by his father on the said date.
4. In the present case it is an admitted fact that Pehlwan Khan had a superior right of pre-emption and it was Pehlwan Khan who filed the suit to exercise the said right of pre-emption. After filing the suit and even leading the evidence he died. In this view of the matter what needs to be determined in this case is as to what is the position of a pre-emptor, who dies after filing the suit and admittedly equipped with the right on the date of sale and on the date of filing of the suit. This matter came up for consideration before the Full Bench of this Court in the case of Allah Dad and another v. Hukam Dad and others (PLD 1960 (W.P.) Lahore 900). In this case Mr. Justice C.M. Sharif referred the question in similar circumstances as are in the present case to a Larger Bench. On reference the Hon'ble Members of the Bench i,e, Kaikaus, J. And Qadeeruddin Ahmad, J. Developed a difference of opinions. Consequently the reference was made to a Full Bench comprising M.R.
Kayani, CJ., B.Z. Kaikaus and Qadeeruddin Ahmad, JJ. According to Kaikaus, J. The right was heritable subject to the condition that the heir too has a preferential right as against the vendee either on account of his ownership of land which may have devolved upon him or on account of his being a nearer heir of the vendor than the vendee. Qadeeruddin Ahmad, J., on the other hand, expressed the opinion that in the Punjab, the right of preemption is neither heritable nor does it survive the death of a pre-emptor and a suit instituted by a pre-emptor abates on his death if the death takes placed during the pendency of the suit. If an heir of a deceased pre-emptor is qualified to pre-empt he can exercise the right by virtue of his quailfication subject to all the limitation of his own right.
5. Chief Justice M.R. Kayani in his leading opinion while holding in para.14 of his judgment:-- "I have, therefore, no doubt that if the owner of the pre-empting property dies, the person who succeeds to the property should inherit the right of pre-emption if it has not been waived or become time-barred."
' Recorded the following reasons in para.12 of the judgment.
"Although I do not base my argument on verbal variations, I notice that according to sections 15 and 16, the right 'vests' in certain persons. Qadeeruddin, J. Lays emphasis on the persons named, but emphasis may well be laid on the word 'vests' and it may be argued that it is a vested right.
Whether that is or is not a correct emphasis, I do not say that I would come to a different conclusion if a different word had been used. The only object of my reference to the Act is to show that there is no reference in it to the Muslim law of preemption, and if the Judges have some time 'fallen back' on that law in a quest for equitable principles, then only equitable principles should prop them. Up. That the law in the Punjab has shown a definite tendency towards breaking away from devices is clear from the insertion of section 21-A in 1944, soon after a Full Bench of the High Court had held ILR 1942 Lah. 155, that the vendee could improve his status and defeat pre-emption by a subsequent purchase. But it is significant, as Kaikaus, J. Points out that even section 21-A permits the improvement for status through inheritance or succession. Inheritance has, therefore, been placed on a different footing from an ordinary transfer by sale, and the argument, that inheritance in the case of a vendee has a different complexion from inheritance in the case of a pre-emptor's son does not alter the principle that inheritance should have a uniform effect in all cases."
6. Then Kaikaus, J. Who had earlier given somewhat conditional answer to the question recorded his judgment and expressed agreement with the Hon'ble Chief Justice. I cannot help but to record here the observations of Kaikaus, J. Made in para. 10 of his said judgment at pages 946 and 947:- "There is one observation which I feel very much inclined to make in this connection. If possible, all suits should be decided on the day on which they are filed. This is not practically possible, but we should as far as possible decide them in the same manner as if they had been decided on the day on which they were filed. No party should be prejudiced by the fact that justice cannot be administered so as to decide disputes on the day on which they are referred to Court."
' Some of the reasons stated by his Lordship to agree with the Hon'ble Chief Justice are contained in para. 9 of the judgment at page 946:-- "I think it will be quite appropriate if I mention here that injustice which will result if we do not allow the right of pre-emption based on ownership to be heritable. I do so because I think it will have to be accepted that it is difficult to make any distinction between cases where the right of pre- emption is based on ownership and cases where the right of pre-emption is based on relationship, so far as the heritability of the right is concerned. Whatever the sources of the right are, it is a right to acquire property, and there is no difference in its nature and incidents. I have already explained in my judgment in Allah Dad v. Hukam Dad how great hardship would result if in the case of urban immovable property we do not allow the right of pre-emption to devolve on the heir in cases where the right of preemption is based on contiguity, joint ownership, common enterance from the street, easement, etc. In such cases the introduction of a stranger would cause great inconvenience to the party and in fact that is why the Muslim law brought into existence the right of preemption.
Suppose there are two brothers living in two contiguous houses, with a common enterance from the street, and having easements as against one and another, and one of the brothers sells his house to a stranger. The other brother files a suit, and either before arguments or even after decree but before the payment of the pre-emption money, the pre-emptor dies, if the right of pre-emption is not heritable the stranger will retain the house in the presence of the son of the pre-emptor although the pre-emptor or his son are not guilty of any negligence. The son who is the heir of the deceased pre-emptor had no right of pre-emption at all during the lifetime of his father and could not file a suit for pre-emption. The only person who could file a suit for pre-emption did file one, but, perhaps for the reason that the Judge had been ill for some time, the suit could not be decided before the death of the pre-emptor. If we do not allow the son to inherit the right of the father, the object of the right of pre-emption would be defeated."
7. I have already stated above that the Supreme Court in the case of Azizur Rehman did not rely on the principles of the Hanfi School of thought which were made basis for the observations from the cases of Muhammad Ismail (AIR 1956 Allahabad 1). Needless to state that the facts and circumstances of the said case are distinguishable from the present case as the original pre- emptor had in fact filed a suit and admittedly had a right of pre-emption on the date of sale. The afore-referred Full Bench of this Court, though by majority, supports the view taken by the learned Courts below that the suit could have been continued by the present respondent.
8. On this juncture I may point out that the amendment in Order XXII, Rule 3, C.P.C. By Law Reforms Ordinance, 1972 somewhat reflects anxiety expressed by their Lordships in the aforementioned case of Allah Dad and another i,e, that a party who has come to the Court seeking justice should be denied the right and his heirs be deprived of the fruits if he dies before the lis is decided by the Court for no fault of his. The said new dispensation has done away with the principles of abatement. There is in fact no abatement now and a suit continues and is to be decided even if the legal representatives of the deceased party are not brought on the record and it will be deemed that the party was alive when the judgment was delivered. In the present case even if the other legal representatives have not thought it fit to join the present respondent in continuing the suit as such legal representatives, there is nothing wrong with the proceedings of the trial Court in continuing the suit and bringing it to its logical end. The trial Court had taken extra care by declaring that the decree shall be deemed to be in favour of the legal representatives. Learned counsel for the respondent informs that the amount of the decree has been deposited by the respondent. If he has done so, then he is entitled to the benefit of the decree. I find support for this observation from the case of Mardan v. Mst. Bilal Jan and 3 others (1990 MLD 370). Be that as it may the objection to this effect can be taken up by the other legal representatives of the deceased Pehlwan Khan and not by the present appellant.
9. The present R.S.A. Is accordingly without any force and is dismissed leaving the parties to bear their own costs.