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--- S. 15-Pre-emption suit, maintainability of-Re-sale made by vendee in favour of a person having superior right of pre-emption as against pre-emptor-Suit of such a pre-emptor can be defeated-Suit, however, cannot be frustrated if re-sale made by vendee in favour of a person not having right of pre-emption superior to that of pre-emptor.

-- S. 15-Pre-emption, right to-A vendor cannot claim a superior right of pre-emption vis-a-vis sale transaction sought to be pre-empted.

- S. 15-Pre-emption, right of-Right of a pre-emptor having superior right of pre-emption on date of re-sale-Cannot be defeated by re-salo-[P L D 1952 Pesh. 1 not applicable].

Pal Singh and others v. Jamun and others 11 P R 1919 and Imam v. Allah Diya 24 P R 1918 rel.

Musali Khan v. Nazir Ahmad P L D 1952 Pesh. 1 not applicable.

S. 15-Rule of lis pendens, application of-Part of land transferred during pendency of pre-emption suit-Transaction, held, hit by rule of lis pendens.

-- Plea of-Oral evidence on question of waiver to be accepted with care and caution.

Musali Khan v. Nazir Ahmad P L D 1952 Pesh. 1 ref.

Sahib Din v. Ch. Fazal Dad Khan P L D 1967 Azad J & K 7 distinguished.

Khan Muhammad Younas Khan for Appellants

Ch. Muhammad Bashir for Respondent. 77

Date of hearing : 15th October, 1978.

This R. S. A. is directed against the judgment and decree, dated 9-2-1978, passed by the learned Additional District Judge, Faisalabad. The facts of this case, in brief, are that the suit land measuring 24 kanals, situate in Chak No. 118-J. B., Tehsil and District Faisalabad, was sold by appellant No. I in favour of late Hussain Ali, who is predecessor-in-interest of appellants Nos. 2, to 11. The sale was evidenced by Mutation No. 349 sanctioned on 16-6-1973. Subsequently, appellants Nos. 8 to 11 re-conveyed the land to appellant No. 1 under Mutation No. 356 dated 4-6-1974. Appellants Nos. 2 to 7 also transferred the land falling to their share, to the vendor vide Mutation No. 358 sanctioned on 1-8-1974.

2. The respondent claiming himself to be the collateral of Rehmat, appellant No. 1, filed a suit against Hussain Ali and appellants Nos. 8 to 11 to pre-empt the sale effected through Mutation No. 349 dated 16-6-1973. Later on, the plaint was amended, appellant No. 1 impleaded as defendant and the re-conveyance made in his favour, under Mutations Nos. 356 and 358 was also assailed. It is to be noticed that the sale witnessed by Mutation No. 356 was made within one year of the original sale and whereas the sale on the basis of Mutation No. 358 took place after the period of limitation.

3. Hussain Ali, appellants Nos. I and 8 to 11 resisted the suit. They asserted that the respondent participated in the sale, and therefore, was precluded from filing the suit It was contended that the land having been re-conveyed to appellant No. I by the other appellants, the suit was not maintainable. As the latter ceased to have any concern with the land, the suit was, therefore, bad for joinder of unnecessary parties.

4. Several issues arising out of the pleadings of the parties were framed by the learned trial Court, but for the purposes of the decision of this R. S. A., the contest is confined only to issues Nos. 2 and 3, which relate to the maintainability of the suit and the estoppel.

5. The learned Civil Judge was of the view that despite the re-sale of the property in favour of the vendor (appellant No. 1) the suit was competent. He held the appellants Nos. 8 to 11 and the predecessor-in-interest of appellants Nos. 2 to 7 sold the land to appellant No. 1 merely to defeat the respondent's superior right of pre-emption. On merits he found that the respondent had the superior right of pre-emption. Consequently, he decreed the' suit in favour of the respondent vide his judgment and decree dated 30-3-1977. The appellants preferred an appeal, but could not succeed, as it was dismissed by the learned Additional District Judge, Faisalabad, and the findings of the learned trial Court were upheld.

6. The learned counsel for the appellants argued that there was no legal bar on re-conveyance of land by appellants Nos. 8 to 11 and the predecessor-in-interest of appellants Nos. 2 to 7 to Rehmat Ali vendor (appellant No. 1). It was submitted that in order to succeed the respondent should have proved that he was possessed of the superior right of pre emption at the time of the sale, the institution of the suit, and the execution of the decree. The submission was that the land having already been re-conveyed to the vendor it could not be said that the respondent remained possessed of the same qualification even at the time of the passing of the decree, and that therefore, the suit could not be decreed in his favour. He further urged that Ghulam Sarwar, D. W. 1, Barkhurdar D. W. 2, and Noor Ahmed D. W. J, in their depositions clearly stated that the respondent participated in the sale made by appellant No. 1 in favour of Hussain Ali and appellants Nos.'2 to 7, but they were not cross-examined in this respect and that, therefore, their testimony was entitled to some weight. But, the learned First Appellate Court did not advert to this aspect of the case. The learned counsel relied on Musall Khan v. Nazir Ahmad (P L D 1952 Pesh. 1) and Sahib Din v. Ch. Fatal Dad Khan (P L D 1967 Azad J & K 7) in support of his submissions.

7. Although, appeal was admitted to hearing to determine the legality of sale made by Hussain Ali (deceased) and appellants Nos. 8 to 11 in favour of the vendor yet during arguments the learned counsel for both the parties submitted that the sale was genuine and that this point did not require adjudication.

8. The learned counsel for the respondent, on the other hand, supported the conclusions arrived at by the learned lower Courts and submitted that the view of the Chief Court, Punjab, had always been that re-conveyance of the land by a vendee to the vendor did not affect the rights of the pre-emptor vis-a-vis, the original sale. In reply to the arguments of the learned counsel for the appellants on the question of estoppel he submitted that since the appeal was admitted to determine the effect of re-sale by the vendees to the vendor, the appellants could not be permitted to agitate on the issue regarding estoppel.

5. I have heard the learned counsel for the parties and examined the record. The original sale made by appellant No. 1 in favour of Hussain Ali deceased and appellants Nos. 8 to 11, was evidenced by Mutation No. 349 dated 16-6-1973. The suit for pre-emption was filed on 8-6-1974. The re-sale of half of the land purchased by appellants Nos. 8 to I1 was made by them in favour of appellant No. 1, through Mutation No. 356 dated 4-6-1974. The re-sale was thus effected before the institution of the suit and within one year of the original sale. However, appellants Nos. 1 to 7 alienated half of the property acquired by Hussain Ali deceased, in favour of appellant No. 1, under Mutation No. 358, dated 1-8-1974. This transaction was thus made after the institution of the suit. There is no controversy between the parties that the respondent being collateral of appellant No. 1, had a superior right of pre-emption vis-a-vis the sale transaction made by him in favour of Hussain Ali (deceased) and appellants Nos 8 to11.

10. It is well settled that in pre-emption cases if re-sale is made by the vendee in favour of a person having superior right of pre-emption as against the pre-emptor, the suit of such a pre-emptor can be defeated ; for in such a case a person possessing superior right of pre-emption, instead of bringing a suit for pre-emption buys the property privately and thus the pre-emptor stands non-suited. However, the suit cannot be frustrated if the re-sale is made by the vendee in favour of a person not having right of pre-emption superior to that of the pre-emptor. In the instant appeal, it is not a case of frustration of the first bargain. The re-sale was an independent transaction which as observed above took place in respect of part of the land during, the pendency of the suit whereas part of the land was alienated after the, institution thereof. .It is also a settled proposition that a vendor cannot claim a superior right of pre-emption vis-a-vis the sale transaction sought to: be pre-empted. On this analysis appellant No. 1 did not have superior right of pre-emption as against the respondent in respect of the original sale. In Pal Singh and others v. Jamun and others (11PR1919) it has been laid down that al right accrues to a pre-emptor, having superior right of pre-emption on the date of sale and such right cannot be defeated by re-sale. This view also finds support from Imami v. Allah Diya (24PR1918) the learned trial Court rightly relied upon this case-law. I have gone through the ruling reported as P L D 1952 Pesh. 1, it does not in any manner advance the appellants' case.

11. Both the learned Courts below did not accept the appellants' evidence that the land was re-transferred to appellant No. 1 by the vendees, under a pre-existing agreement between the parties. A concurrent finding was given by the learned lower Courts that the subsequent two transactions of re-sale were merely a device to defeat the respondents' superior right of pre-emption. There is no reason to differ with this finding. It is also to noticed that the second transaction covered by Mutation No. 358, which took place after the institution of the suit, would in the circumstances of the case, be hit by the rule of lis pendens as appellant No. 1, in law, did not have a superior right of pre-emption as against the respondent.

12. The principle that a pre-emptor should possess superior right of pre-emption not only at the time of sale but also should retain that right both at the time of institution of the suit as well as decree of the trial Court, is not attracted to a case like the present one, and the submissions of the learned counsel for the appellant, in this respect, are without any merit.

13. The objection regarding waiver may now be dealt with. This plea rests on the submission that respondent actively participated in the first sale which is stated to have taken place in his baithak. Whether or not the respondent participated in the sale is a question of fact. The learned trial Court in this respect returned findings against the appellants on Issue No. 3 regarding waiver. Though the learned Additional District Judge did not give any finding on this point, yet the tenor of the impugned judgment is that of approval of findings of the learned trial Court. The oral evidence on the question of waiver is to be accepted with care and caution. The learned trial Court who examined the witnesses after careful appreciation of evidence did not place reliance on the testimony of the appellants' witnesses in this respect. The perusal of the record in the light of the submissions made by the appellants' learned counsel does not persuade me to depart from the view taken by the learned trial Court with which the learned 1st Appellate Court also did not differ. Sahib Din's case cited by the appellant's learned counsel has no applicability to the facts of the instant case.

14. As a result of the above discussion, the judgment and decree of the learned First Appellate Court are affirmed and the appeal is dismissed with costs.

Appeal dismissed.

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