Respondents Nos. l and 2 filed two independent suits to assail a sale of 116 Kanals, 16 Marlas in Chak No.136/TDA Muzaffargarh by Begum Wiqarun Nisha Noon in favour of M/s Noor Muhammad, Muhammad Hussain, Siraj Din, Miraj and Fazal Karim defendants for an ostensible sum of Rs.16,000.
In their plaint they alleged that Noor Muhammad defendant No. l was not an owner in the village and, therefore, his association with rest of the defendants who were admittedly owners in estate had given rise to the exercise of their right of pre-emption. The plaintiff-Bilawal now respondent No.2 accepted the consideration at Rs.16,000 while the plaintiff in the suit now respondent No. l Haji Ghulam Qadir alleged that transaction in question wasp actually affected for a sum of Rs.9,425. It is .An admitted fact that during the pendency of the suit the vendee/defendant No. l (now respondent No .l Noor Muhammad) transferred his share in the suit land in favour of his sons who were arrayed in the consolidated suits as defendants Nos.6 to 12 by way of an amended plaint filed after remand in the first round under the direction of the Court. All proceedings were conducted in Suit No.63 of 1967 filed by the present respondent No.2-Bilawal. After framing of issues and allowing the parties to record their evidence both the suits were decreed on 18-12-1969 and the two pre- emptors were granted suit land in equal share on payment of Rs.16,869 to be made in equal proportion by them. However, the learned First Appellate Court/Additional District Judge, Muzaffargah remanded the case while accepting appeal on.23-4-1972 for a fresh decision: The single most factor responsible for remand being intervening sale during the pendency of the suit by Noor Muhammad-defendant No. l to defendants Nos. 6 to 12 and its legal effect on the claim of the pre-emptors. The subsequent vendees namely defendants Nos.6 to 12 in their written statement raised a number of objections including the denial of superior rights of pre--emptors and that being owners in the estate they were at par with them. After remand, however, it appears that both the pre-emptors admitted the consideration of the sale in question at Rs.16,000.
2. After remand the learned trial Court/Civil Judge, 1st Class, Layyah found both the pre-emptors to be owner in the village. Also that Noor Muhammad defendant No. l did not own any land in the Mauza. Further that the new defendants Nos.2 to 5 who had allegedly purchased the part of the disputed land from defendant No.1, thereafter could not be allowed to improve their status although they were admittedly owners in land and therefore ranked equally with the pre-emptors.
According to the learned trial Court the transfer of part of the land during the pendency of the suit by defendant No.1 in favour of defendants Nos.2 to 5 did not in any manner effect the superior right of both the plaintiff/pre-emptors. Also the learned trial Court refused to allow the defendant No. l Noor Muhammad to set up a defence that the land transferred to them out of the original transaction was devisible and, therefore, could not be a subject-matter of the suit for pre-- emption. The trial Court noted that share in the sale price allegedly contributed by defendant No.1 in the original sale was not specified in the deed. Therefore, the sale could not be held to be devisible. Accordingly the learned trial Court proceeded to hold that sale in favour of defendant No.1 Noor Muhammad alongwith the other original defendants was joint and indevisible one. Also that transfer of half share of the suit land by Noor Muhammad-defendant No.1 in favour of defendants Nos.6 to 12 presently respondents Nos.3 to 9 during the pendency of the suit did not effect right of pre-emption in as much it had been made not only during the pendency of the suit but also beyond one year from the date of original sale. The alleged improvements by vendees were also found unsubstantiated. Accordingly it was again found that both the pre-empotors inter se being owners of estate in Mauza were entitled to pre-empt the suit land after paying equal consideration as earlier admitted by them. They were directed to make payment of their respective shares on or before 12-2-1973.
3. On further appeal, the District Judge, Muzaffargarh on 12-9-1977 maintained the aforesaid findings of fact on Issues Nos. l, 3 and 12 and therefore, dismissed the two separate appeals filed by the original defendants as also by vendees of Noor Muhammad defendant No. l namely M/s. Akbar A.I etc. Now respondents No.3 to 9.
4. This further appeal also was filed by M/s Muhammad Hussain etc. Original defendants Nos.2 to 5 while no appeal was filed either by Noor Muhammad original defendant No. l nor his transferee sons M/s Akbar A.I the original defendants Nos.6 to 12. The appellants M/s Muhammad Hussain etc. Have not turned up. It is only M/s Akbar A.I etc. Who have appeared and defended the sale in their favour by their father Noor Muhammad respondent.
5. Since the original appellants M/s Muhammad Hussain etc. Have failed to turn up the issue with regard to superior right of defendants Nos. l and 2 and the sale price does not appear in contention any more. It is the present respondent M/s Akbar A.I Nos.3 to 9 and their father Noor Muhammad who are left to support the sale during the pendency of the suit.
6. Before proceeding further it appears appropriate to take note of and to re-emphasise the basis fact. It is that original sale for the aforesaid consideration took place on 17-1-1966 and was registered on 2-2-1966 Bilawal pre-empted the sale by way of the suit filed on 3-2-1967 while Haji Qadir plaintiff filed his suit on 18-1-1967. During the pendency of both the suits and much longer after having been served and in fact putting in appearance as defendant No.1 Noor Muhammad by way of a consent statement made before the Civil Court in a suit for declaration filed by his sons admitted to have transferred the land in their favour. According to the record on 11-2-1969 Akbar A.I etc. Filed a suit against their father Noor Muhammad in the Civil Court at Layyah alleging that their father had transferred his land in the impugned sale on 4-1-1968. The written statement was filed on the very next day and the suit was decreed on 12-2-1969.
7. In the perspective of the above facts the only issue that needs to be decided remains the effect of alleged sale by original defendant No. l Noor Muhammad in favour of his son M/s Akbar A.I.
8. Learned counsel for the respondents M/s. Akbar A.I etc. Defendants Nos.6 to 12 in the suits and presently respondents Nos.3 to 9 claims that section 21-A of the Punjab Pre-emption Act, 1913 applies only to the original vendee and not to subsequent vendees. He claims that the sale made by Noor Muhammad in favour of his sons was duly protected in law inasmuch as it was not the original vendee but the subsequent vendees who could put up the defence of superior right of pre- emption against the plaintiff. In view of the learned counsel (PLD 1971 Lahore 71) re: Mst. Fateh Bibi v.
Ahmed Khan and 6 others supports his view point. In that case a Division Bench of this Court inter alia found that the doctrine of lis pendens did not apply to sale of immovable properties by vendees in favour of a person having rights of pre-emption superior to that of pre-emptor. Also that a re-sale by a vendee to a person having right superior to that of pre--emptors would defeat the pre-emptor.
9. Learned counsel for the respondents Nos. l and 2, however, controverts the claim. He states that in the aforesaid judgment it was clearly mentioned that any such re-sale had to be made within a period of limitation and that provisions of section 21-A of the Pre-emption Act, 1913 was clearly applicable in this case inasmuch as no improvement in status could be made by a vendee/defendant after the institution of suit for Pre-emption except by way of inheritance or succession. He admits that in the aforesaid judgment Fateh Bibi (Supra) this Court found that section 21-A had no application to the case of a subsequent vendee who had acquired the property privately in assertion of his superior right of pre-emption. However, he strongly asserts that a defence by the transferees of the vendee can be put up only if sale in their favour is made within the period of limitation and before the filing of the suit. In support of his contention, learned counsel relies upon re: Mool Chand and others v. Ganga Jal and others (AIR 1930 Lahore 356) re: Jas Raj Juniwal v. Gokal Chand Jaini (AIR 1935 Lahore 808), re: The Municipal Committee of Lahore v. Rattan Chand (AIR 1923 Lahore 31), re: Dharam Singh v. Kirpal Singh and others (AIR 1923 Lahore 31(2) re: Her Keshi v. Miwa Ram and others (AIR 1923 Allahabad 294), re: Akbar. A.I v. King Emperor (1925 Lahore 613) (I), Jan Muhammad v. Nasir Khan and others (1925 Lahore 614 (2), re: Jas Raj Juniwal v. Gokal Chand Jaini (AIR 1935 Lahore 808) re: Muhammad Ismail Khan and another through their Legal Heirs v. Ghulam Haider and 3 others (PLD 1988 Lahore 691), re: Muhammad Yaqoob and 4 others v. Ghulam Muhammad PLD 1982 Lah. 752, re: Muhammad Khan and another v. Sadiq and others (PLD 1968 Lahore 929 re: Muhammad Siddique and 8 others v. Wazir Hussain (1985 CLC 1091) re: Sarwar Din and another v. Zikri Khan and another (1987 CLC 2476), and re: Ghulam Muhammad etc. v. Bakhah PLD 1991 SC 562.
10. After hearing the parties I will readily agree with the learned counsel for the respondents Nos. l and 2 that no improvement in the status by a vendee or further vendee can be put up as a defence when the last sale happens after the period of limitation and during the pendency of the suit. As the facts stated above clearly indicate both the suits were filed within stipulated limit of one year as prescribed under the late Punjab Pre-emption Act, 1913. The Defendant Noor Muhammad appeared and alongwith other defendants even filed a written statement. However, much after the filing of the suit, on 11-2-1969 in the suit filed by his sons he admitted to have sold his share in the suit land in their favour on 4-1-1968. Even if that date is accepted as correct and it is believed that he had disposed of the land in favour of his sons some one year earlier to the filing of their suit still that transaction was made late in the day not only after filing of rival pre-emption suits but also after having participated in the proceedings by filing a written statement. The defence taken up by his sons M/s. Akbar A.I respondents if allowed to prevail will change the basic purpose of the pre- emption law as enforced at the relevant time. The same cannot be allowed to be done. The case law relied upon by the learned counsel for the respondents Nos. l and 2 clearly supports his proposition. The pre-partition as well as post partition judgments of the superior Courts in the subcontinent appear unanimous that the said defence plea taken by M/s. Akbar A.I etc. Respondents cannot prevail. It shall accordingly be refused.
As noted earlier, after the first round when defendants Nos.2 to 5 filed a fresh written statement when the vendees of defendant No. l were brought on record as defendants an attempt was made for the first time to say that original sale was divisible inasmuch as the share of vendee defendant Noor Muhammad was specific. That contention was rightly rejected as from the record a specific and independent payment of consideration could not be established to prove the divisibility of sale.
Therefore, this Regular Second Appeal will fail with no order as to costs.