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Civil Revision No. 128 of 1954 decided on 30th September, 1955 against the judgment and decree of Faizullah Khan, District Judge, Hazara Abbottabad, dated 27th February, 1954.

, S. 16 Pre‑emptor must have a subsisting superior right at the time of passing of decree‑Vendee purchasing contiguous property by the same sale‑deed‑Held: vendee can successfully defeat pre emptor claiming on ground of vicinage‑Each Khasra No. must be considered separately for purpose of contiguity.

P brought three Khasra Nos. 1174,1173, 1177. K brought a suit for pre‑emption on ground of contiguity and a decree was passed in respect of Khasra No. 1174 only which was contiguous to the house of K. On appeal, the District Judge dismissed the suit in toto.

(on Revision) that Khasra No. 1173 being also contiguous to Khasra No. 1174, the vendee P had an equal right with the pre‑emptor K, although Khasra No. 1173 had been purchased by the same sale transaction which K had sought to impugn. The suit of K was therefore, rightly dismissed.

A I R 1946 Lah. 345, followed.

A I R 1946 Lab. 345, P L D 1954 Flesh. 75, A I R 1926 All. 661 A R 1927 All. 517, AIR 1932 P C 57, A I R 1938 All. 1.92, A I R 1.935 Lab. 529, A I R 1937 Lab. 182, A I R 1939 Lab. 77, A I R 1941 Lah. 433 ref.

For the purpose of pre‑emption each Khasra No. is to he considered separately, even though a number of them have been purchased by means of one transaction and are con tiguous to each other. The pre‑emptor must prove his right based on contiguity in respect of each and every Khasra No. before he can succeed.

Abdul Wahab Khan for Petitioner.

Pir Bakhsh Khan for Respondent

‑These two connected revision petitions, arising out of a pre‑emption suit, raise an important question of law, namely, whether a vendee can improve his position before decree is passed, and can successfully resist the pre‑emption suit. For this reason they were referred to Bench for decision.

Kazi Pir Muhammad, of Damtaur, Tahsil Abbottabad, purchased three Khasra Nos. 1174, 1173, and 1177, in one transaction. Kalandar Khan filed a suit for pre‑emption claim ing preferential right on ground of contiguity. The Court of first instance found that the house of the pre‑emptor adjoined only Khasra No. 1174, and therefore, he passed a decree in his favour for this piece of land. His suit in respect of the remaining Khasra Nos. was dismissed. Both the parties filed appeals, and the District judge dismissed the pre‑emptor's suit even in regard to the Khasra No. decreed in his favour by the Court of first instance on the authority of a case reported in A I R 1946 Lah. 345. The pre‑emptor has now preferred two separate revision petitions against the decisions in his two appeals, and they are being disposed of together.

The learned counsel for the pre‑emptor petitioner has conceded that his client has no right to pre‑empt Khasra Nos. 1173 and 1177, because his house is not contiguous to this property, but he challenges the correctness of the ruling relied upon by the Appellate Court, and urges that as the pre‑emptor has his property contiguous to Khasra No. 1174, while the vendee has no such right, his client is entitled to a decree of this one Khasra No.

It is evident from the facts outlined above that the pre -emptor's property is contiguous to Khasra No. 1174 now in dispute, but the question arises 'whether the vendee can defeat his right of pre‑emption on the ground of his having acquired a title to Khasra No. 1173, which also is contiguous to the Khasra No. in dispute.

There is a Single Judge decision of this Court reported in P L D 1954 Pesh. 75, wherein it has been held that a vendee could successfully resist the pre‑emptor's claim, if after the institution of the suit, but before the passing of the decree, he improved his position by reason of his becoming a co sharer in the property in dispute, a right equal to that of the pre‑emptor. No doubt the question involved in that case fell under "Firstly" of section 12 of the N‑W. F. P. Pre‑emption Act, 1950, but the principle enunciated* in the judgment was that a vendee could better his status at any time before the decree was passed. In order to place the legal position beyond any pale of doubt we would like to go into the question more deeply and discuss it in the light of various authorities dealing with the subject.

It may be pointed out in this connection that the N. W. F. P. Pre‑emption Act, 1950, is on the pattern of Agra Pre‑emption Act, 1923, and section 16 of our Act is a verbatim reproduction of the corresponding section 19 of the Agra Act, which reads as follows:‑

"No decree for pre‑emption shall be passed in favour of any person unless he has a subsisting right of pre‑emption at the time of the decree, but where a decree for pre‑emption has been passed in favour of a plaintiff, whether by a Court of first instance, or of appeal, the right of such plaintiff shall not be affected by any transfer or loss of his interest occurring after the date of such decree".

The Allahabad High Court has held in several cases that the expression "he (pre‑emptor) has a subsisting right of pre emption at the time of the decree" means that the pre‑emptor must have "a subsisting right of pre‑emption" right up till the time of the passing of the decree as against the vendee. Put in clearer words it means that at the time of the passing of the decree the pre‑emptor must possess a superior right to that of the vendee. This necessarily leads to the conclusion that if before the passing of the decree the vendee acquires a right equal to that of the pre‑emptor the latter cannot succeed.

In the A I R 1926 All. 661 the learned judges held that the plaintiff must have a subsisting right ' of pre‑emption not only on the date of the sale and the date of the suit, but also at the time of the decree, and if prior to the passing of the decree, the defendant acquired an interest by way of a gift, which puts him on an equal footing with the plaintiff, the suit could not be decreed. In the reported case the vendee had acquired an interest by way of a gift, but it would make no difference whether the vendee acquires a new interest by way of gift or otherwise, because in both cases, he acquires an interest equal to that of the pre‑emptor, and, therefore, he can non‑suit him. The above decision was later followed in another case reported in A I R 1927 All. 517.

A question similar to the one now before us was also taken to the Privy Council, and their Lordships, after discuss ing various authorities placed before them for consideration, were ultimately pleased to hold that an acquisition of a share in a property by the vendee during the pendency of the pre emption suit, but before the passing of the decree, would result in a loss of pre‑emptor's right. In their opinion, the decisive date as regards the right of the pre‑emptor was the date of the decree. This case is reported in A I R 1932 P C 57.

Recently another case of the same nature came up before the Allahabad High Court, and the learned judge Sinha J. agreed with the previous view of that Court. In this case three different items of property were purchased by the vendee on the basis of separate sale‑deeds. The plaintiff pre‑empted only two of the transactions, and not the third. It was held that the‑ third sale, which was not pre‑empted gave an indefeasible title to the vendee so as to defeat the plaintiff's right of pre‑emption. This case is reported in A I R 1938 All. 192:

In a number of cases the Lahore High Court has also enunciated the same principle of law on the subject. In A I R 1935 Lah. 529 the learned judges Addison and Din Muhammad JJ. held that the pre‑emptor must retain his right upto the date of the decree, and if during the pendency of the suit the vendee acquires a right equal to that of the pre emptor before the decree is passed, the suit must be dismissed. The same Judges adhered to their previous view in a sub sequent case reported in A I R 1937 Lah. 182. In this case, they held that if the vendee acquired property from the Government before the decree, his title and status became equal to those of the plaintiff, and the latter could not succeed.

In a later case reported in A I R 1939 Lah. 77 another judge Ram Lal J. agreed with Addison and Din Muhammad, JJ., and held that the vendee can defeat the pre‑emptor whether he acquired a right in the property equal to that of the pre‑emptor simultaneously at the time of the sale in question, or after the sale, or even after the institution of the suit, but before the decree. This decision clinches the whole matter as the facts of the reported case are on all fours with those of the one before us.

Still recently a Full Bench consisting of Tek Chand, Din Muhammad and Becket, JJ. in a case reported in A I R 1941 Lah. 433, held that the acquisition of, a right by the vendee during the pendency of the suit can arm him with an effective weapon to destroy the pre‑emptor's superior claim. In his lengthy judgment, in which legal acumen of a high order is displayed, after discussing the various aspects of the question involved in the case, Din Muhammad J. observed:

"These arguments still hold good and nothing that has been argued before us has shaken me from the position I took in the previous judgments. I, therefore, lay down as an abstract proposition of law that a vendee can, by improving his status, defeat the right of a pre‑emptor."

A more recent authority of the Lahore High Court reported in A I R 1946 Lah. 345 has been cited before us. The facts of this case are substantially identical to those of the present one. The learned judges Achhru Ram, Ram Lal and Din Muhammad JJ. have enunciated the law of pre‑emp tion in reference to the case in the following word :

"After giving most careful thought to the question, we are of the opinion that a vendee, in a suit brought to enforce on the ground of vicinage a right of pre‑emption in respect of one of the properties purchased by him, can successfully resist the suit on the strength of his title to an adjoining property conveyed to him by means of the same sale‑deed".

It is not disputed by the learned counsel for the petitioner that the positions and rights of the parties as against each other in the present case are exactly similar to those involved in the last mentioned case of Lahore High Court. It is admitted that whereas on the one side the house of the plaintiff is contiguous to Khasra No. 1174 in dispute on the other side Khasra No. 1173, which has been purchased by the defendant, and in respect of which the plaintiff cannot claim any right of pre‑emption, is also contiguous to the Khasra No. in dispute. Thus it is clear that the properties of the plaintiff and the defendant, both being contiguous to the property in dispute, they have equal rights, and as such, the plaintiff cannot claim superior right of pre‑emption as against the defendant. The latter has acquired an indefeasible title to a property contiguous to that in dispute at the time of the sale, and having improved his status long before the suit was instituted, he can successfully resist the plaintiffs suit. It may be incidentally pointed out here that this Court has consistently held the view that for the purpose of pre‑emption each Khasra No. is to be considered separately, even though a number of them have been purchased by means of one transaction and are contiguous to each other, and the pre‑emptor must prove his right based on contiguity in respect of each and every Khasra No. before he can succeed.

In view of the overwhelming authority on the subject discussed above, we fully concur in the finding of the appellate Court, and dismiss both the revision petitions. As a difficult question of law was involved in the case, the lower Courts left the parties to bear their own costs. We have no reason to disagree with them, and, therefore, the parties are left to bear their own costs throughout.

1. H.

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