SAYED ZAHID HUSSAIN, J.--- The suit land was sold by one Rehmat in favour of Bashir Ahmad, petitioner Shaukat A.I, respondent, filed a suit to pre-empt the said sale claiming to have a superior right as against, the vendees, being daughter's son of the vendor. The suit was contested. After framing the issues, the trial Court on consideration of the evidence produced by the parties, returned finding that the respondent/plaintiff had a superior right of pre-emption and decreed the suit vide judgment dated 8.11.1980. An appeal was filed by the petitioners, which was dismissed by the learned Additional District Judge, Jhang on 16.3.1983 This is now revision petition by the vendees/defendants.
2. The admitting order shows that this revision was admitted on the point of non-payment of full Court-fee and its effect. However, the learned counsel has not addressed the arguments on the same and contends that even if it is assumed that the respondent is the grand -son of the vendor, i.e., daughter's son, he has no right of preemption under Section 15 of the Punjab Pre-emption Act, 1913.
3. On the other hand, the learned counsel for the respondent contends that the respondent has been found to have superior right of pre-emption on correct appreciation of evidence and the relevant provisions of law, therefore, this revision should be dismissed. It is contended that in view of the admitted position that the respondent is daughter's son of Rehmat, the vendor, whereas the vendees have no relation with the vendor, he has a preferential right under Section 15 of the Act.
4. There are indeed concurrent findings by the two Courts below that respondent is daughter's son of the vendor and has a superior right of pre-emption as compared to the vendees, who had no such qualification.
5. In order to determine whether the respondent/plaintiff had a superior right of pre-emption on account of relationship with the vendor, reference to Section 15(b) clause thirdly after the proviso maybe appropriate. It is as follows:-- "Subject to the provisions of Section 15, the right of preemption in respect of agricultural land and village immovable property shall vest--
(b) Firstly...........
Secondly........... Thirdly............ Provided that in case where the sale is by the Muslim the firstly and secondly shall be in-applicable, and the thirdly shall read as follows:-- Thirdly, in the persons, in order of succession, but for such -sale would be entitled, on the death of the vendors to inherit the land or property sold."
(underlined for emphasis)
6. The above clause came-up for consideration in Ghulam A.I Vs. Qutub Din (AIR 1936 Lahore 477) and it was held that the expression "in order of succession" in the clause clearly indicates that:-- "Every person who would be entitled to succeed under the , law is entitled to maintain a suit for pre-emption, but if a Preferential heir chooses to exercise the right then the right of the remoter heir is defeated." `'Courts have only to keep in view the plaintiff and the vendee and not other relations of 'the vendor.
They have to take it that the vendor has died and have to find out as to who of the parties before them the pre-emptor and the vendee is entitled to inherit his property to the exclusion Of the other.
The person who is so entitled has a superior right of pre-emption. If he is a pre-emptor he gets a decree. And if he is a vendee the pre-emptores suit is dismissed."
(underlined by me for emphasis)
Reference may also be made to Nargis Begum and others Vs. Muhammad Ibrahim and others (PLJ 1982 SC (AJK) 35) wherein the Supreme Court of AJ&K with reference to the previous case-law and in particular by reproducing the portions from Jalal Din's case (PLD 1979 SC 879) in extenso held that:- "On a proper interpretation of the words of the clause it would appear that it conferred a right of pre-emption on the whole line of heirs and not merely on the next and nearest heirs at the time of sale. The right inter se would be determined in order of succession i.e., the nearer heir would exclude the more remote. It may be remembered that when the question of superiority of the right of preemption, Under Section 14(b) thirdly of the Prior Purchase Act, is to be determined, one has to only keep in view the plaintiff and the vendee and no other relations of the vendor should be allowed to step in.. AIR 1936 Lah. 477 may be quoted on the point which says that the clause permits every agnate and cognate, however distantly related he may be, to pre-empt in the absence of a suit by nearer heirs who has a right of succession. The sine qua non is the right of succession. The remote heir may suo for pre-emption if the nearer heir declined or omitted to assert."
7. For the said view reference was also made to Allah Din and another Vs. Prabh Dayal and others (AIR 1938 Lahore 646) and Muhammad Hayat and others Vs. Ghulam Murtaza (PLD 1949 Lahore 53).
The above view was reiterated by the Supreme Court of AJ&K in Haji Muhammad Yousaf Khan Vs. Abdul Aziz Khan and 5 others (PLD 1983 SC (AJ&K) 188).
8. The view taken by the Supreme Court in Jalal Din's case (sup'ra) was followed in Mst. Raz Khanum Bibi Vs. -Nazir Ahmad and others (1985 SCMR 1725). Thus the view consistently held by the Courts is that a reasonable chance of succession by a preemptor/plaintiff as against the vendee, who has no such chance would entitle him/her to a decree in pre-emption suit.
9. Applying the above principle of law, as enunciated by the Courts, undoubtedly the grand-son of the vendor had superior right as compared to the vendees, therefore, the view taken by the two Courts below concurrently does not suffer from any illegality.