dated 25.4.2001 whereby the appeal filed by the appellant, herein, was, dismissed.
2. The brief facts giving rise to the present appeal are that land measuring one kanal 15 marlas, comprising survey No. 360, situate in village Kanalili, tehsil Mirpur, was purchased by Muhammad Faraz Khan, pro forma respondent No. 2 from Muhammad Khan, pro forma respondent No. 3, vide sale-deed dated 27.12.1990. Najib Khan, respondent No. 1, challenged the validity of the sale-deed alleging that he was in possession of the suit land and his possession had ripened into ownership; in alternative, he prayed for a decree on the basis of right of prior purchase on the ground that land in dispute is adjacent to his land. The Trial Court heard the arguments and the case was fixed for announcement of the judgment when Khalid Mahhmood, appellant, herein, moved an application on 29.8.1998 for being impleaded in the line of defendants alleging that he had purchased the land in dispute from the original vendee, Muhammad Faraz Khan through a sale- deed dated 27.8.1998. As the arguments in the case had already been heard, the Trial Court also heard arguments on the said application filed by Khalid Mahmood. The Trial Court passed a decree on the basis of the right of prior purchase in favour of the plaintiff pre-emptor, Najib Khan, and dismissed the application of Khalid Mahmood for his impleadment as party holding that he was not a necessary party in view of the fact that the alleged sale-deed was executed in his favour by Muhammad Faraz, the first vendee, during the pendency of the suit and, thus, the same was hit by the principle of lis pen-dens. The appeals filed by Khalid Mahmood before the District Judge and the High Court were also dismissed confirming the view taken by the Trial Court.
3. Raja Muhammad Siddique Khan, Advocate, the learned counsel for the appellant, has argued that the Courts below have committed an error in dismissing the appeals by holding that Khalid Mahmood, appellant, was not a necessary party on the basis of sale-deed executed in his favour by Muhammad Faraz, the first vendee, in view of the principle incorporated in section 52 of, the Transfer of Property Act. He has argued that Khalid Mahmood, appellant, did not claim anything more than what was claimed by Muhammad Faraz, the original vendee. He has contended that as , Muhammad Faraz improved his status by virtue of a gift deed which , was executed by one Barkat Ali son of Said Ali on 11.6.1997 in his favour, the pre-emption suit filed by Najib Khan was liable to be dismissed because of the improvement of status by Muhammad Faraz, the first vendee. He has contended that introduction of section 20-A of the Right of Prior Purchase Act which, negates the effect of the improvement in the status by a vendee during the pendency of the suit, is not applicable to the ,case in hand because the said amendment was introduced through an Ordinance on 15.7.1998, whereas the sale of the suit land took place in the year 1990 and the pre- emption suit was also instituted by Najib Khan, respondent, on 18.3.1991. Thus, according to the learned counsel, the appellant herein, was a necessary party because he could claim the same right of the improvement of status of Muhammad Faraz, the first vendee. In other words, according to the learned counsel for the appellant, Khalid Mahmood, could defeat the right of pre-emption of Najib Khan, respondent No. 1, on the same grounds which Muhammad Faraz, the first vendee, could do. The learned counsel has referred to the following cases in support of his contentions:-- 1995 MLD 1299) it has been held that if law is amended by introducing any new provisions, such an amendment would not create any right or impose any liability unless otherwise provided; it would operate prospectively and not retrospectively.
4. In reply, Ch. Mansif Dad, Advocate, the learned counsel for respondent No. 1, has argued that in fact there was collusion between Muhammad Faraz, the first vendee, and Khalid Mahmood, appellant herein, who purchased the suit land from Muhammad Faraz, the first vendee. He has contended that the pre-emption suit against Muhammad Faraz, first vendee, has been pending for more than 8 years and the arguments in the case had also been heard when Khalid Mahmood came up with the plea that as he had purchased the land from Muhammad Faraz, he might be impleaded as a party in the suit. The learned counsel has taken pains to show as to how the alleged fictitious gift-deed was executed in favour of Muhammad Faraz, the first vendee, and subsequently, illegal corrections were also effected in the relevant power of attorney. The learned counsel has submitted that the provisions contained in section 20-A of the right of Prior Purchase Act, whereby a vendee is debarred from improving his status during the pendency of preemption suit is fully attracted in the instant case because the amendment was made before the decree was passed by the Trial Court. He has cited a number of authorities relied upon by the High Court, wherein it has been held that if the land is transferred during the pendency of a pre-emption suit, the new vendee is not a necessary party until and unless the suit land is transferred to him within the period of limitation prescribed for suit of preemption against the first vendee. The learned counsel has argued that irrespective of the application of the provisions of section 20A which was introduced during the pendency of the suit, the fact remains that as the sale-deed in favour of Khalid Mahmood, appellant herein, was executed by the first vendee more than seven years of expiry of the limitation prescribed for pre-emption suit against the first sale, he cannot defeat the pre-emption suit of Najib Khan, respondent-pre-emptor on the ground that the suit land was transferred to him in recognition of his preferential right of pre-emption. The learned counsel has submitted that there is no authority in support of the proposition that if the land is transferred by the first vendee in recognition of his superior right of preemption, he can be a necessary party even if the said transfer was made after the expiry of period of limitation prescribed for a preemption suit.
5. We have given due consideration to the arguments raised by the learned counsel for the parties.
The moot point in the case is as to whether Khalid Mahmood, appellant herein, was necessary party in the pre-emption suit filed by Najib Khan, respondent. It is admitted fact that so-called transfer made by the first vendee in favour of the appellant was made after about seven years of expiry of the period of limitation prescribed for filing the pre -emption suit against the first sale.
Thus, it cannot be said that a purchaser from the first vendee is not hit by the principle of lis pen- dens envisaged under section 52 of the Transfer of Property Act. The appellant, herein, could resist the suit filed by Najib Khan, plaintiff-pre-emptor, only if the land in dispute would have been transferred to the appellant within the period of limitation prescribed for filing the pre-emption suit against the first 'sale. As has already been pointed out, he having obtained the sale-deed from the first vendee during the pendency of pre-emption suit after the expiry of the period of limitation prescribed for the suit of preemption against the first sale-deed, it cannot be said that he had stepped into the shoes of Muhammad Faraz, the first vendee, and, thus, he was competent to avail any of the defence which was available to the first vendee. Thus, irrespective of the fact as to whether there was collusion between Muhammad Faraz, the first vendee, and Khalid Mahmood, appellant herein, or not, the fact remains that the transfer having been made in favour of Khalid Mahmood after the expiry of period of limitation against Muhammad Faraz, the first vendee, it cannot be said that Khalid Mahmood was a necessary party and he should have been so impleaded in the pre-emption suit filed by Najib Khan, respondent.