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Civil Regular Second Appeal No. 122/68 of 1947, decided on 7th February, 1948, from the judgment of District Judge, Dera Ismail Khan, dated 25th June, 1947.

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------S. 17,‑Re‑sale by vendee pending pre‑emption suit‑Does not vest new rights‑Re‑sale within limitation in favour of Person having a right of Pre‑emp tion superior to vendee as well as pre‑emptor‑Def eats Pre‑emp tor's claim.

The re‑sale does not really vest any new rights. All that the subsequent vendee does in such a case is to take the bargain in the assertion of his pre‑existing pre‑emption right, and hence, the re‑sale does not offend the doctrine of lis pendens.

If a person possessing a superior right of pre‑emption to the pre‑emptor instead of buying the suit property privately brings a pre‑emption suit in respect of the same property, his suit will succeed and the pre‑emptor will be non‑suited. Consequently, there is no cogent reason why the same result should not follow in case such a person instead of bringing a pre‑emption suit buys the suit property out of Court from the first vendee. It is also well established that a vendee may sell to a person who has an equal right with the pre‑emptor or who has a superior right to the pre emptor, ante litem, so as to defeat the pre‑emptor's claim provided the transaction is genuine. This being so, it will be inequitable to permit a pre‑emptor to defeat a person who has a superior right of pre‑emption and to whom the suit property is re‑sold within the period of limitation, simply because the pre‑emptor rushes to Court immediately after a sale is effected.

A. I. R. 1930 Lah. 356, 26 P. R. 1908, 10 I. C. 367, relied on, 1942 Pesh. L. J. 43 dissented from 10 I. C. 842, 72 I. C. 278, 30 I. L. Reports 467, A. I. R. 1923 All. 1294, A. I. R. 925 All. 487, and I. R. 1932 P. C. 57 referred to.

Muhammad Shafi‑‑for Appellant.

Abdul Lateef Khan‑for Respondent No. 1.

On the 25th of April, 1945, Abdullah Khan brought a suit for possession by pre‑emption of the property in dispute on payment of Rs. 10000. The vendees, K. S. Dost Mohammad Khan, and his brothers, Abdul Hamid Khan and Sher Mohammad Khan (defendants No. 1 to 3.) sold the same property on the 31st of May, 1945, ostensibly for Rs. 15,000 to Mustaqim in recognition of his superior right of pre‑emption. The trial judge found that the suit property was in fact sold to the first three vendees for Rs. 15,000. He also found that the sale to Mustaqim had taken place within one year of the original sale, and that his right to, pre‑empt the suit land was superior both to the right of the first vendees and the preemptor. He relied on A. I. R. 1930 Lahore 356, and held that the sale in favour of Mustaqim, though it was effected peudente life, defeated the right of Abdullab. He accordingly dismissed the suit, but considered it equitable to direct the parties to bear their own costs.

From the above judgment and decree, the plaintiff appealed to the District Judge D. I. Khan. The learned lower Appellate Court' affirmed the findings of the trial judge except that he held on the strength of 1942 Pesh. Law journal 43, that the principle of lis, pendens applied in the present case, and thereby did not defeat the right of the pre‑emptor. He, therefore, accepted the appeal, and awarded the plaintiff a decree for possession of the suit property by pre‑emption on payment of Rs. 15,000 with costs throughout.

Mustaqim, being dissatisfied, has come up on further appeal to this Court, and the only point for decision is :‑---

Does the rule of lis pendens apply when during the pendency of a pre‑emption suit, the vendee transfers the property which is the subject‑matter of litigation to a person possessing a right of preemption superior to that of the pre‑emptor in recognition of such person's pre‑emptive 'rights

The valuation of the appeal and the importance of the ques tion involved entitle the appeal to be heard by a Bench, but I am constrained to deal with it sitting alone as the only other judge of this Court, before his elevation to the Bench, had appeared as counsel for the appellant in the present case, and as it is impracticable to constitute a Bench without such judge

The authorities 'which are brought to my notice, and which are relevant and material to the decision of the above question, are 26 Punjab Record 1908 (D. B.), 10 Indian Cases 67 (I3. B.), 10 Indian Cases 842 (S. J.), and A. I. R. 1923 Allahabad 294 (D. B.) in addition to the two decisions, one of which was relied upon by the trial judge, and the other by the District judge, in the present case. Out of, these, 1942 Pesh. Law Journal 43, is the only authority which in effect lays down that a re‑sale pendente life to a person having a superior right of preemption to that of the preemptor does not affect the pre‑emptor s claim. Quite an opposite view was taken in 26 Punjab Record 1908, 10 Indian. Cases 367, and A. I. R. 1930 Lahore 356 (F. B). In 10 'Indian Cases 842, it was held that where on a pre-emptor filing a suit for possession, the vendee sold the property to a person who possessed equal right of preemption, the doctrine of lis pendens did not apply if the right of the subsequent vendee subsisted at the date of the sale to him and was not time‑barred, arid that in such a case, the provisions of section 14 of the Punjab Preemption Act might be used by the Court trying the case. In A. I. R. 1923 Allahabad 294, the view taken is that a subsequent transfer by a vendee even in favour of a co‑sharer of equal degree with the preemptor defeats the latter's right. The real point for consideration, therefore, is which of the two opposite views should be followed. In order to come to a satisfactory conclusion in this respect, I think it would be appropriate to examine the relative merits of these two views and the reasoning on which each of them is based.

Now, 1942 Pesh. Law Journal 43, which is a Single judge judgment, is principally based on an observation made by their Lordships of the Privy Council at Page 60 of their judgment, reported in A. I. R. 1932 P. C. 57. This observation reads as follows:‑---

"The argument for the appellants which would make the filing of the suit the fact which crystallizes the rights of the parties is mainly based upon the maxim pendente lite nihil innovetur. So far as the principle of this maxim finds expression in section 52, T. P. Act, it undoubtedly applies, and due effect has been given to it in cases where the defence relied upon the re‑sale to a co‑sharer pending suit.'"

Now, it is admitted, and in fact it was noted in the Peshawar, case, that the above observation was obiter dictum, and that the decision of Their Lordships of the Privy Council in that case was based principally on the course of previous decision (30 Indian Law Reports 467 and A. I. R. 1925 Allahabad 487) in the Allahabad High Court. It is also to be noted that after having made the above observation, Their Lordships observed that no authority had been brought to their notice which would give a wider application to the maxim than that or would suggest a general doctrine of the law that nothing occurring between the date of the institution of the suit and the decree could alter the relations existing between the parties. Their Lordships also adverted to the fact that the Courts of the neighbouring Provinces dissented from the Allahabad decisions on various points and various grounds, but that no useful purpose would be served by an exami nation of these cases, as they were satisfied that the decision of the Allahabad High Court was in accordance with a consensus of judicial opinion in the Agra Province, which they thought should not now be disturbed. It can, therefore, be safely concluded that the observation made by their, Lordships of the Privy Council was not meant to be of general application. However that may be, it is clear that that observation did not relate to a re‑sale pendente lite to a person possessing' superior right of preemption both to the vendee and the preemptor. Moreover, as held by the Madras High Court, in 72 Indian Cases 278, when a point directly arises for decision, it' is the duty pf the Court to consider the point for itself, giving of course due weight to any words which fell, although obiter, from their Lordships of the Privy Council.

After giving due weight to the above observation of Their Lordships of the Privy Council, I think that‑it cannot be treated as a decisive authority for the view adopted in 1942 Pesh. Law Journal 43.

The reason given for the opposite view as expressed in the rest of the cases, is, that the re‑sale does not really vest any new rights. All that the subsequent vendee does in such a case is to take the bargain in the assertion of his pre‑existing preemption right, and hence, the re‑sale does not offend the doctrine of lis pendens.

Now, it cannot be denied that a right of preemption comes into existence as soon as a sale is effected. The re‑sale, therefore, does not create any new right; the right pre‑exists the re‑sale. I, therefore, conclude that the view of law taken in 26 Punjab Record 1908, 10 Indian Cases 367, and A. I. R. 1930 Lahore 356, should be preferred to the one taken in 1942 Pesh. Law journal, 43. This conclusion can be justified on other considera tions also. It is admitted that if a person possessing a superior right of preemption to the preemptor instead of buying the suit property privately brings a preemption suit in respect of the same property, his suit will succeed and the preemptor ill be non‑suited. Consequently, there is no cogent reason why the same result should not follow in case such, a person instead of bringing a preemption suit buys the suit property out of Court from the first vendee. It is also well‑established that a vendee may sell to a person who has an equal right with the preemptor or who has a superior right to the preemptor, ante litem, so as to defeat the preemptor's claim provided the transaction is genuine. This being so, I think it will be inequitable to permit a preemptor to defeat a person who has a superior right of pre‑emption and to whom the suit property is re‑sold within a period of limitation, simply because the preemptor rushes to Court immediately after a sale is effected.

In view of the foregoing discussion, I hold that the re‑sale in favour of the appellant in the present case defeats the preemptor's claim. I accordingly accept this appeal and dismiss the suit of Abdullah Khar.

As the question raised and decided was not free from difficulty. I consider it fair and just to leave the parties to bear their own costs throughout. Order announced.

K. M. A. Appeal accepted.

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