Through this regular second appeal, the findings given by Mr. A.M. Tiwana, learned District Judge, Attock, dated 2-7-1983, in Civil Appeal No.186 of 1982, is being questioned. Whereby the learned District Judge had reversed the findings given by Mr. Mehmood Khalid, learned Civil Judge First Class, Talagang, dated 15-6-1979. Whereby he had decreed the suit holding that the plaintiffs had a superior right of pre-emption against the vendees/defendants. They were directed to pay the balance price and also to make good the deficient court-fee.
2. The subject-matter of the suit is land measuring 497 Kanals, 1 Marla, located in the area of Village Shaghar. The pre-emptor's case was that they were collaterals of the vendor. They had also challenged the ostensible price which was fixed at Rs.72,000 while stating that only Rs.20,000 was paid.
3. The case of the vendees was that the transaction was in fact a gift and not a sale. They had also denied the superior right of pre-emption of the plaintiffs.
4. Defendants Nos.4 and 5 who were tenants, had also filed a suit for 'pre-emption in the Court of Collector on ground of tenancy as this right existed then and were implicated as a party under the order of the Court.
5. Regarding the question whether the transaction was a gift or a sale, there are concurrent findings on fact on this issue and it was held that the transaction was a sale. Anyway, this matter was not argued before this Court neither there was any argument with respect to the sale price.
6. The main argument before this Court was that the learned First Appellate Court while deciding Issue No.5 erred in law and in interpretation of section 21-A of the Punjab Pre-emption Act, 1913, while holding that the vendees have improved their title through inheritance and the plaintiffs have, therefore, lost their right of pre-emption.
7. In this connection, reference may be made to paragraph 19 of the findings of the learned District Judge, which reads as follows:-- "It is an admitted position that Baqir Bukhari and Abdul Malik Shah are related to Mst. Gahran in various degrees and they are her heirs by consanguinity as they fall within categories I(ii) and II(ii) respectively, as given in para.88 of the Muhammadan Law and as such there could be no doubt about their having superior right of pre-emption as compared to the plaintiffs-respondents. The controversy is only with regard to M. Amir Khan defendant-vendee, who was altogether a stranger to Mst. Gahran vendor. He was, however, married to her sister and on his death during the pendency of the appeal, his legal heirs became her heirs. Thereby they happened to improve their status through inheritance or by succession within the meaning of section 21-A of the Pre-emption Act and they also became heirs of Mst. Gahran. In this way they ceased to be strangers and their status became at par with co--defendants-appellants. Consequently all of them happened to have superior right of pre-emption as compared to their opponents. The finding of the Court below on this issue is, therefore, reversed and it is decided against the plaintiffs-respondents."
8. According to the learned counsel for the appellants, the improvement in the status as referred to by section 21-A is of a vendee after the institution of al suit for pre-emption and not of the persons who become his legal heirs upon his death.
9. Section 21-A of the Punjab Pre-emption Act, 1913, reads as follows:-- .
"Insertion of new section in Punjab Act, I of 1913.--- 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."
10. The improvement stated in this case is one which came through inheritance to the legal heirs of Ameer Khan, the vendee in this case. The best answer to the question would be through assumption as to what would be the status of the vendee Ameer Khan if he was alive today. It is an admitted position that he was a stranger to Mst. Gahran, the vendor. Of course, his legal heirs inherited from Mst. Gahran being the children of her sister married to Ameer Khan. If Ameer Khan had so inherited instead of his legal heirs, the logic advanced by the learned District Judge would have been more sound. Section 21-A of the Pre-emption Act, therefore, speaks of the improvement of status through inheritance by the vendee himself and not by his legal heirs. Who upon his death inherit his status as the pre-emptor in substitution while they may be also having their own status and ownership, which in the context of the present case is to be kept out of consideration.
11. After hearing the learned counsel from both sides, this Court is of the view that the decision of the learned District Judge, Attock; was not based on correct appreciation of law. It is set aside, and that of the trial Court is upheld. The appeal is, therefore, accepted with no order as to costs.