1. Facts giving rise to the present appeal briefly stated are that land measuring 1 Kanal and 15 Marlas comprising Survey No. ,360 Khewat 186/182 situate in village Kanali Tehsil Mirpur was purchased by Muhammad Fraz Khan from Muhammad Khan on December 27, 1990. Najib Khan challenged the legality of this sale-deed through a declaratory suit asserting his possession over the suit land on account of oral sale, which according to him, being more than 12 years had repined into his ownership, as such the vendor was not legally entitled to excuse sale-deed in favour of Muhammad Fraz Khan. Alternatively he claimed his prior right of purchase over the suit-land on the ground that land in dispute is located adjacent to his land. Furthermore initially land owned by him and land in dispute were part of the same survey number and secondly on the ground that vendor has got no land in the village in which the land in dispute is situated. Initially ex parte order was passed against respondents. Subsequently, on his request, ex parte order was vacated. He filed his written statement in which he challenged the maintainability of the suit on various grounds and also denied that plaintiff has got right of prior purchase against him.
2. The trial Court framed 5 issues including one for relief. Thereafter, parties lead their evidence before the Court. On August 27, 1998 when case was posted for judgment, one Khalid Mehmood moved an application for impleading him in the line of defendants on the ground that he has purchased land in dispute through sale-deed executed in his favour on August 27, 1998 by vendee defendant. The Court- acting upon the principle laid down in section 52 of the Transfer of Property Act rejected his application and vide judgment and decree dated August 31, 1998 allowed requisite decree in favour of plaintiff respondent which was also maintained by the first appellate Court on February- 11, 1999, hence this appeal.
3. Raja Muhammad Siddique Khan, the learned counsel for the appellant argued that the plaintiff in pre-emption suit is required by law to have his right of prior purchase at the time of sale, institution of suit and to maintain it till the decree is passed in his favour. The land in dispute was transferred to the appellant by vendee through a sale-deed executed in his favour on August 27, 1998. At that time the pre-emption suit of the .Respondent was still awaiting final adjudication from the trial Court. He, therefore, was necessary party who has got a right to challenge the decree initially passed by the trial, Court in favour of plaintiff-respondent and subsequently maintained by the first appellate Court vide judgment under appeal dated 11th February, 1998. According to him, the principle of lis pendens would not effect the validity of the sale-deed executed by the first vendees during the pendency of the pre-emption suit to his client who has got superior or at least equal right of pre-emption to that of plaintiff/respondent who had pre-empted the sale in favour of first vendee. Alternatively he argued that his client has obtained vital interest in the land after purchasing the same for valuable consideration from first vendee Muhammad Khan, therefore, he is necessary party in the suit, or at least he can be treated as proper party in the suit. The Courts below, therefore, should have compared the status of plaintiff/respondent with his status before granting decree to him.
4. On the other hand, Ch. Munsif Dad Khan, the learned counsel for tie respondents has three-fold objection about the maintainability of the appeal of the present appellant before this Court against the judgment passed by the Courts.
5. His first objection is that on behalf of Muhammad Fraz Khan vendee, one Bashir appeared as his attorney and disclosed himself as his real brother. He later on appointed counsel as attorney of the vendee, whereas on 23rd April 1991, no power of attorney was given to him, as such, he was not legally competent to engage any counsel on behalf of vendee.
6. His second objection is that Fraz Khan executed a sale-deed for disputed land in favour of Khalid Mehmood appellant after the laps of linutation period of 27th August, 1998, Courts below, therefore, have rightly applied the principle of lis pendens as laid down in section 52 of the Transfer of Property Act. The first vendee has not preferred any appeal before this Court. Khalid Mehmood has- got no right of appeal, therefore, his appeal is liable to be dismissed without entering into the merits of the case. He in support of his contention relied on the following cases. Mt. Sant Kaur v. Teja Singh and others" AIR (33) 1946 Lahore 142 "Ghulab Khan v. Muhammad Sarwar Khan PLD 1974 Azad J&K 85, Abdul Karim v. Kala Khan and another PLD-1987 Azad J&K 139 and Muhammad Afzal Khan, v.
7. Muhammad Latif' 1995 CLC 1951.
8. I have gone through the reports of these cases, wherein it is laid down that the doctrine of lis pendens applies to the suits for pre-emption and further that this rule would be effective if a sale takes place after the laps of original pre-emption period, even in favour of person having superior right p than that of pre-emptor. Because a person having a pre-emptive right, if by his negligence allows the period of limitation to expire by not filing a suit, his right is extinguished and he cannot, subsequently by his collusion with the original vendee, deprive a pre-emptor of his prior right of purchase exercised by him by instituting a suit within the period of limitation.
9. I have considered the respective arguments of the learned counsel for the parties and gone through the record of the case.
10. No doubt initially the Advocate was appointed by one Bashir who has disclosed himself to be the real brother of vendee Fraz Khan. He had engaged .a counsel for Fraz Khan who later on filed written statement on his behalf. The appointment of the Counsel initially does not seem to have been made validly. However, subsequently all the acts performed by the counsel were validated- by the vendee himself. The procedure contained in C.P.C. Is B meant for .Administration of justice and for smooth working of the Courts while resolving disputes of civil nature between the contesting parties. Therefore, I do not think that this objection is available to the judgment holder at this stage of the proceedings.The question which needs determination is as to whether Khalid Mehmood, after purchasing land in dispute vide sale-deed dated 27th August, 1998, was necessary or proper party was argued by the learned counsel for the appellant and that the trial Court has committed an error by refusing application moved by him under Order 1, rule 10 of C. P. C. For being impleaded as defendant in the suit.
11. Admittedly the discretion, of the Court to implead any person as defendant or a plaintiff is exercisable for the purpose of effective and complete adjudication of .All the disputed issues involved in the suit. In the present case, two facts cannot be ignored firstly that Khalid Mehmood obtained land through a sale-deed at the time when suit was pending before the trial Court for a period exceeding almost 7 years and was posted for I judgment between first vendee and pre- emptor. Secondly that Khalid Mehmood who had right of pre-emption either equal or superior as claimed by him to that of the plaintiff respondent had not brought a suit to enforce his pre- emptive right within the period of limitation prescribed under law. Therefore, it cannot be said that first vendee had admitted his claim of prior purchase, as such, land in dispute was transferred to Khalid Mehmood by him on this very ground. Before purchasing land from first vendee, the present appellant had not obtained permission from the Court, therefore, the o transaction of sale in his favour is hit by section 52 of the Transfer of Property Act and no right had accrued to him on account of the sale-deed. He therefore, in my opinion was neither necessary or proper party. The trial Court, therefore, was justified in rejecting his application moved by him under Order 1, rule 10, C.P.C. For being iapleaded as defendant in the suit filed some seven years prior to his application.
12. Reference may be made to "Mst. Ghulam Fatima and others v. Rahim Bakash and others 1988 SCM R 250" wherein the apex Court of Pakistan, in such like circumstances, has observed as follows:-- "Being an assignee pending litigation and the principles of Civil Procedure Code being applicable the appellant cannot claim to be necessary or a proper party."
13. It appears appropriate to quote section 52 of the transfer of Property Act which reads as follows:-- "During the pendency in any Court having authority in Pakistan or established beyond the limits of Pakistan by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to effect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. "
14. Explanation.--For the purposes of this section, the pendency of a suit or proceedings shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceedings in a Court of competent jurisdiction, and to continue until the suit or proceedings has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
15. From the reading of this provision of law, it becomes clear that it is prohibited acquisition of interest at the instance of one of the parties to the suit during its pendency, and therefore, if a subsequent vendee like present appellant chooses to purchase land without notice to other party and Court, during the pendency of the suit, he will dolt at his own risk. The appellant in the present case has purchased the land, in my view, at his own risk. His prayer to be brought on record as defendant was, therefore, rightly refused by the trial Court.
16. As said earlier, even if Khalid Mehmood had superior or equal pre---emptive right to that of plaintiff/pre-emptor, he by his conduct had waved the same by allowing limitation to expire as land was purchased by him after the laps of more than 7 years. Therefore, the doctrine of lis pendens does apply to the sale-deed executed in his favour by the first vendee.
17. The doctrine of lis pendens first of all was discussed by the full Bench of Lahore High Court in a case titled, Mt. Sant Kour v. Teja Singh, and others AIR (33) 1946 Lahore 142",. In this case a subsequent vendee acquiring land during the pendency of a suit was held not even a proper party.
18. The first point raised by the learned counsel for the appellant that his client should have been impleaded as defendant, in view of the above discussion, has no substance. It is true that in pre- emption suits, the pre---emptor in order to succeed, must prove his superior right of purchase at the time of transfer of the immovable property to the vendee, institution of the suit and passing of the decree in his favour. In the absence of right of prior purchase at either stage, his suit is liable to be dismissed. In the present case, as said earlier, Khalid Mehmood appeared at the scene when case, after protected litigation of 7 years between plaintinff/respondent and vendee, had been posted for judgment. Therefore, the subsequent transaction of sale in his favour, made much after the expiry of limitation, is hit by the rule of lis pendens. The Courts below, therefore, have committed no error in law while passing decrees in favour of respondent. The appellant may recover amount from first vendee, which he has paid to him as price of the land or with his permission may receive the decreetal amount, if the same stands deposited in the lower Court.
19. The upshot of the above discussion is that finding no force in this appeal, the same is hereby dismissed with costs.
20. Order announced.