' MUNIR A. SHEIKH, J. --This appeal by leave of the Court is directed against the judgment dated 4- 2-1999 of the Lahore High Court whereby regular second appeal filed by the appellant has been dismissed.
2. The facts of the case giving rise to this appeal shortly stated are that the appellant purchased the property in dispute on 16-10-1972 through Mutation No,275. The respondents filed suit to pre- empt the said sale on the ground that they had superior right of pre-emption as they were owners of the estate and also co-sharers in the relevant Khatas. It was contested by the appellant both on merits and on the ground of limitation, for it was a dispute as to on which date, the plaint shall be deemed to have been presented before the Court of competent jurisdiction for the purposes of limitation, for in the absence of learned Presiding Officer of the Court concerned, the plaint was received by the Reader of the Court on 15-10-1973 and placed before the learned Judge on 17-10- 1973.
3. The trial Court through judgment dated 23-2-1980 held that the respodents-plaintiffs had established their superior right of pre-emption. However, the suit was dismissed on the ground of limitation. An appeal was filed by the respondents-plaintiffs before the first Appellate Court challenging the correctness of the judgment of the trial Court on the issue of limitation which was accepted through judgment dated 10-12-1984 and on reversal of the findings of the trial Court on the issue of limitation, the suit was decreed, for the decision on the issue of superior right of pre- emption had already been recorded in their favour the correctness of which was found to have not been assailed by the present appellant either by filing cross-objections or even orally during arguments in order to support the decree of dismissal of the suit which he could do under Order XLI, rule 22, C.P.C. The appellant tiled R.S.A. No,290 of 1984 before the Lahore High Court which was accepted through judgment dated 22-2-1989 and the case remanded to the trial Court only to decide the issue of limitation afresh on the evidence to be adduced by the parties and by proper scrutiny of the record.
4. In the post remand proceedings, the appellant made an application seeking amendment in the written statement to add a plea that on account of Mutation No,364 dated 6-5-1981 of inheritance, he had improved the status and consequently the pre-emption suit may be dismissed on that account in terms of section 21-A of the Pre-emption Act, 1913. It was contested by the respondents- plaintiffs. This application was rejected by the trial Court but in revision petition filed by the appellant, the same was allowed as a consequence of which the following two additional issues were framed:-- "5.A. Whether the defendant/vendee has improved his status during pendency of the suit, if so, its effects?OPD 5-B. Whether the suit cannot proceed in view of enforcement of late enactment, 1991?" OPD
5. The trial Court held through judgment dated 31-7-1986 that decree by the first Appellate Court was passed on 10-12-1984 in favour of the plaintiff-pre-emptor, therefore, the suit did not abate on account of applicability of rule laid down in the case of Said Kamal Shah (PLD 1986 SC 360), therefore, Issue No,5-B was answered against the appellant. On issue No,5-A, the findings of the trial Court were that since in the previous round of litigation in pre-remand period, the suit had been decided finally by the trial Court on 23-2-1980 by passing decree of dismissal on the ground of limitation, therefore, the improvement of status through inheritance made by the appellant after passing of the said judgment was of no avail, for the improvement in the status made before the final judgment passed by the trial Court could only be made the basis for defeating the suit of the pre-emptor. The suit was decreed by the trial Court. The appeal filed by the appellant failed and second appeal has also been dismissed by the learned Judge in Chamber of the Lahore High Court through the impugned judgment dated 4-2-1999 against which this appeal by leave is directed.
6. Nobody has appeared on behalf of the respondents in spite of service, therefore, they have been proceeded against ex parte.
7. Mr. S.M. Zafar, learned counsel for the appellant relying upon judgment in the case of Muhammad Akram and 3 others v. Muhammad Rashid and 2 others (PLD 1994 SC 848) on which reliance has also been placed by the learned Single Judge in the impugned judgment argued that till a decree in favour of the pre-emptor is passed either by the trial Court or in appeal, the vendee could avail of improvement of status as envisaged by section 21-A of the Pre-emption Act, 1913 to defeat the suit of the plaintiff-pre-emptor, for the appeal is a continuation of the original suit and once an appeal is filed, the suit becomes pending for all intents and purposes.
8. The argument though appears to be ingenuous but we find that the same is not tenable on close scrutiny of law. A close scrutiny of the case of Muhammad Akram (supra) on which reliance has been placed by the learned counsel for the appellant in support of his arguments would reveal that the principles laid down in the cases of Thakur Madho Singh and another v. Lt. James R.B.
Shinner and another (AIR 1941 Lahore 433), Zahur Din and another v. Jalal Din and others (AIR (31)
1944 Lahore 319) and Madho Singh and another v. Lieut. James R.R. Skinner and others (ILR 1942 Lahore 155) have been held to have laid down the law correctly and approved. Even in the case of Muhammad Akram (supra), it has not been held that the vendee improving his status through inheritance after the adjudication of the suit finally by the trial Court during the pendency of appeal could defeat the right of pre-emption as the observations made are as under:-- ' "However, if the improvement in the status of vendee takes place by acquisition of property rights through succession or inheritance even after institution of the pre-emption suit but before a decree is passed in the suit, then such improvement in the status of vendee can be pleaded as a defence to the claim of the pre-emptor."
9. It has not been mentioned that the expression "decree" used by this Court in this judgment was by any mean construed to be a decree in favour of the pre-emptor. However, the facts of the reported cases were that decree in favour of the pre-emptor was passed during the pendency of the first appeal, for the trial Court had dismissed the suit of one of the rival preemptor on merits and improvement of status of the vendee took place during the pendency of the 'second appeal against the said decree of the Appellate Court. In the background of these circumstances, if an observation was made that the vendee improved his status after passing of decree in favour of the pre-emptor by the first Appellate Court which did not mean to hold as a principle of law that improvement made after final decision by the trial Court was available to defeat the suit. On the other hand, in this judgment, the argument that appeal was the continuation of the original suit which would be deemed to be pending when appeal is filed for the purpose of defeating the same on the improvement of status by the vendee was not accepted, for it was held that in appeal, the only question which is to be determined is as to what decree should have been passed by the trial Court on the day when it decided the suit through judgment under appeal, therefore, it has all along been held by the superior Courts consistently through judgments, that it is the date of final judgment of the trial Court in the suit of pre-emption on merits whether in favour of the plaintiff or the defendant that improvement of status of the vendee through succession if made before the said date, could defeat the suit and not otherwise. In the case of Zahur Din and another v. Jalal Din and others (AIR (31) 1944 Lahore 319), the principles laid down are as under:-- ' "No doubt it is possible for a vendee to improve his status effectively up to the time of the adjudication of the suit against him and get it dismissed if on account of that improvement, he becomes either equal to or superior in status to that of the pre-emptor. But it is not possible to extend the date by which a vendee can improve his status beyond the date of the adjudication of the suit by the Court of first instance and he cannot, therefore, by improving his position during the pendency of an appeal defeat the pre-emptor when the decision of the first Court in the pre- emption suit against which the appeal was preferred was given on the merits whether rightly in the pre-emptor's favour or erroneously against him."
10. Similar was the rule laid down in the case of Thakur Madho Singh and another v. Lt. James R.R.
Skinner and another (AIR 1941 Lahore 433), in which it was held as under:-- ' "A vendee can defeat the right of the pre-emptor by improving his status at any time before the passing of the decree in the pre-emption suit by the trial Court, as the rights of parties are adjudicated upon by the Trial Court alone and the, function of the Court of appeal is only to see what was the decree which the Court of first instance should have passed."
11. Both the, judgments are based on the principle laid down in the case reported in ILR 1942 Lahore
155. No deviation has been made from this rule in the case of Muhammad Akram (supra). In the present case, the question as to whether the respondents-plaintiffs had superior right of pre- emption was adjudicated upon on merits in favour of the respondents in the judgment which was originally passed by the trial Court on 23-2-1980 but the suit was dismissed on the ground of limitation, therefore, it was rightly held by the learned Judge in Chamber that apart from the fact that even if the said adjudication had gone against the respondent-plaintiff, the same would not have changed the position that improvement in the status by the vendee must have been made before the final judgment in the cases on merits was passed, may be against the plaintiff. In the present case, adjudication of superior right of pre-emption even in the said judgment of dismissal of suit on the ground of limitation had been made in favour of the respondent, therefore, improvement of status through succession made during the pendency of appeal was of no avail which finding is perfectly in accordance with the law laid down in this behalf by the superior Courts.
12. For the foregoing reasons, this appeal has no merits which is accordingly dismissed with no order as to costs.