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Civil Appeal No. 2 of 1955, decided on 16th November 1955.

(On appeal from the judgment and decree of the High Court of Judicature at Lahore, dated the 7th June 1952, in Civil Regular Second Appeal No. 272 of 1950.)

Ss. 4 and 17‑‑A and M two independent pre‑emptors‑A compromising with K vendee and after a consent decree passed in A's favour A transferred house pre‑empted to B and B to S‑M, held, entitled to entire house‑Lis pendens.

The vendor sold his house to K. Two suits for pre emption were instituted, one by A and the other by M A and K compromised with the result that a consent decree was passed in A's favour. Then A sold the house along with his own, on the basis of which the right of pre‑emption was asserted by him, to B who in turn sold the house further to S, appellant. The trial Court passed a decree for one‑half in favour of M on, the ground that the other half would have been retained by A whose place was now occupied by S. The first appellate Court affirmed this judgment.

On second appeal, the High Court held that during the litigation A's transferees could not acquire a right to defeat the suit and the entire transaction was devoid of good faith. On these findings, the suit of M was decreed in full.

Held, that A had eliminated himself from all concern in the matter and the vendees from him did not possess any right of their own for the assertion of which they could be in a position to bring suits for pre‑emption regarding the original sale. The right of pre‑emption is a personal right. No one possessing a right of pre‑emption, can clothe another with no right with right of his own by transfer. In such a case, the doctrine of lis pendens would not in any way affect or prejudice the rights of litigants.

The question of " good faith " on the part of A would have been of some importance, if A had been the person against whom relief was claimed by M. In his absence, it was no longer of any importance.

The decision of the High Court was upheld.

Mool Chand v. Ganga Jal I L R 11 Lah. 258 and Bhagwan Sahai v. Nanak Chand etc. I L R 49 All. 516 mentioned.

Bashir Ahmad, Senior Advocate, Federal Court, (Iftikharul Haq, Advocate, Federal Court, with him) instructed by M. Siddiq, Attorney for Appellant.

Said Akbar and Muhammad Amin Khan, Advocates, Federal Court, instructed by Nazir‑ud‑Din, Attorney fag. Respondents.

Date of hearing : November 16, 1955.

This is a defendant's appeal against the judgment and decree of the High Court of Judicature at Lahore, reversing the decisions of the Sub ordinate Courts and decreeing the plaintiff's suit for pre‑emp tion in full.

By a deed, dated 112th of January 1945, and registered on 22nd of January 1945, one Muhammad Rab Nawaz Khan sold his house situated in the city of Multan to Msa. Kaniz Fatima for Rs, 2,600. Two suits for pre‑emption were instituted one by Amir Baz Khan, the brother of the vendor, and the other by Muhammad Akram respondent a few days later on 17th of January 1946. On 23rd of January 1946, Amir Baz Khan and Mst. Kaniz Fatima. compromised with the result that a consent‑decree was passed in his favour. Two days later, that is, on 25th of January 1946, Amir Baz Khan sold the house in dispute along with his own on the basis of which, the right of pre‑emption was asserted by him, to Allah Ditta and Barkat Alt, who, in their turn, on 9th of March 1946, sold it further to Muhammad Suleman, the appellant before us.

It is common ground that both the pre‑emptors had equal right of pre‑emption and, if the suits had been fought out to the fuish, each of tile plaintiffs would have got one‑half share in the property. The trial Court passed a decree for one‑half in favour of the plaintiff Muhammad Akram on the ground that the other half would have been retained by Amir Baz Khan whose place was now occupied by the defendant‑appellant. The first appellate Court affirmed this judgment.

On second appeal, the High Court held that Amir Baz Khan was no longer possessed of any interest in the property ; that during the litigation his transferees could not acquire a right to defeat the suit and that the entire transaction was devoid of good faith. On these findings, the suit of Muhammad Akram, plaintiff, was decreed in full, On the application of the appellant, the case was certified to be a fit one for appeal to this Court.

For the appellant it was contended that the moment the superior right of Amir Baz Khan was recognised by Mst. Kaniz Fatima (the first vendee), he was substituted in her place and it was not necessary for him to continue with the suit. The further argument developed somewhat like this. The transactions, which formed the subject‑matter of the pre emption suits, so far as Amir Baz Khan was concerned, had concluded‑and, since the doctrine of lis pendens applied to pre‑emption suits as well, the subsequent transferees did not and could not claim greater rights than those possessed by Amir Baz Klan and as such the respondent (Muhammad Akram) was not entitled to obtain a decree for more than one‑half, which he would have been able to get in a contest with Amir Baz Khan. Reliance was placed on Mocl Chand v. Ganga Jal (I L R 11 Lah. 258) and Bhagwan Sahai v. Nanak Chand etc. (I L R 49 All. 516).

Mool Chand v. Ganga Jal (1) dealt with the question whether the rule of lis pendens extended to pre‑emption suits and with what effect. Some land was sold on 21st of September 1920 to Lachhman Das Vakil. The deed was registered on 2nd of December 1920. Mool Chand plaintiff brought a suit for pre‑emption. Before the Aummouses were served, Lachhman Das vendee transferred the same land by sale to Kura Mal on 5th of November 1921. On 28th of November 1921, Kura Mal further sold it to Ganga Dhar. The subsequent vendees claimed to have acquired the property in assertion of their superior right of pre‑emption. It was held that the doctrine of lis pendens applied to pre‑, emption suits. It was further held that the sale did not and could not improve the position of the purchaser pendente lite, but he could claim that the sale to him did not occasion any detriment to the rights that were already his. He could, therefore, defend his title on the ground of his pre‑existing right and the result would be that if that right was inferior to the plaintiff pre‑emptor's, the suit would be decreed, if it was superior the suit would be dismissed. It was also held that section 17 defining the rights of the rival pre‑emptors, did not in terms apply in such a case and the suit was dismissed.

In Bliagwan Sahai v. Nanak Chand etc. certain zamirdari rights were sold to one Ram Lal on 17th of October 1922. On 7th or 8th of October 1923, Moti Ram filed his suit for pre emption. On 13th of October 1923, a rival suit for pre‑emption was brought by Risaldar‑Major Bliagwan Sahai. On the 20^th of October 1923, Ram Lal, the original purchaser, sold the property to Risaldar‑Major Bhagwan Sahai. Risaldar‑Major Bhagwan Sahai withdrew his suit on 14th of April 1924. Moti Ram continued with his suit and impleaded Risaldar‑Major Bhagwan Sahai as a defendant. It was held that the transfer to Risaldar‑Major Bhagwan Sahai was made pendente lite and, though this principle was to be given full effect, it could really be said that the transfer made on the 20th of October 1923, necessarily affected the rights of Moti Ram plaintiff. It was observed that had the two rival suits for pre‑emption been fought out; both the parties would have been entitled to take the property in equal shares and the position could not be affected by the transfer in favour of Risaldar‑Major Bhagwan Sahai on 20th of October 1923. The fact that Bhagwan Sahai had privately asserted his rights successfully could not so improve his position as to defeat the rights of the rival plaintiff, who too was entitled to get a, share in the property: The plaintiff was, consequently, granted a decree for one‑half on payment of one‑half of the consideration money.

It is difficult to see how the cases cited above could be of any help or use to the appellant. Amir Baz Khan, if he had continued as a plaintiff in the suit, and had not lost his right, could certainly claim as much right of pre‑emption as Muhammad Akram respondent, or, if his subsequent transferees possessed‑ independent right of pre‑emption at the time the sale was first made on 12th January 1945, they could take advantage of .that antecedent right. But Amir Baz Khan had eliminated himself from all concern in the matter and the vendees from him did not possess any right of their own for the assertion of which they could be in a position to bring suits for pre‑emption regarding the transaction of the 12th of January 1945. That right of pre‑emption is a personal right does not admit of any dispute, nor could any person, possessing a right of pre‑emption, clothe another with no right with right of his own by transfer. As mentioned earlier, the doctrine of lis pendens would not in any way affect or prejudice the rights of litigants. In Mool Chand v. Ganga Jal the con esting defendant, Ganga Dhar, hard got the transfer made in his favour at a time when if it had not been done, he could enforce his right through Court, and in the suit of the rival plaintiff he could defend his acquisition on the ground that he was as .much entitled to the property as the plaintiff and in order to grant a decree to the plaintiff his superior right must be established. Since it was not superior to Ganga Dhar, the suit had to be dismissed. In Bhagwan property the suit had s etc. been instituted Sahai acquired the by a person who was also entitled to the property in the same manner as he himself was: Since the vendee preferred one of the rival pre‑emptors, the property was divided by the Court in the shares in which it would have been decreed according to the respective claims. In the present case, the appellant could take advantage of the decision in Bhagwan Sahai v. Nanak Chand etc., if he had had his own right of pre‑emption and had asserted it within the period allowed by law.

The question of " good faith " on the part of Amir Ban Khan would have been of some importance, if Amir Baz Khan had been the person against whom relief was claimed by Muhammad Akram. In his absence, it is no longer of any importance.

For the reasons given above, the decision by the High Court must be upheld and the appeal is, consequently, dismissed with costs.

A.H. Appeal dismissed.

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