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Civil Petition for Special Leave to Appeal No: 77‑R of 1976, decided on 29th October, 1976.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated the 23rd February, 1976, in R. S. A. No. 140 of 1976).
----Ss. 15 & 21 ‑ Pre‑emption decree ‑ Not affected by anything happening subsequently ‑ Sale pre‑emptible and cause of action accruing to respondent to file pre‑emption suit under S. 21 of Punjab Pre‑emption Act, 1913, when sale completed‑Decree for declaration, held, cannot bind pre‑emptor, subsequent suit being a device to defeat pre‑emption decree.
119 P R 1919 and Ganda Singh v Bhan A I R 1923. Lah. 310 ref.
Muhammad Sardar Khan, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of bearing: 29th October. 1976.
‑The petitioner seeks special leave to appeal from the order dated 23‑2‑1976 of a learned Single Judge of the Lahore High Court by which R. S. A. No. 140 of 1976, was dismissed in limine.
The petitioner herein purchased the suit land measuring 69 kanals and 1 marla situated in village Karotana, Tehsil and District Gujranwala, for a consideration of Rs. 24,000 as per Registered Sale Deed, dated 16‑11‑1966. The respondent claiming a superior right as being the owner of the land in the same revenue estate filed a suit to pre‑empt the sale in the Court of Civil Judge, Gujranwala. The petitioner resisted the suit and ultimately it was decreed on 10‑4‑1969. The appeal failed and the petitioner thereupon filed R. S. A. in the Lahore High Court, which too was dismissed in limine.
Before the first Appellate Court the learned counsel for the petitioner conceded that the findings of the trial Court on Issues Nos. 1, 2, 4 and 5 were correct. Accordingly the First Appellate Court affirmed the findings of the trial Court on Issues Nos. 3, 6 and 7.
It would be relevant to mention here that during the pendency of the appeal in the First Appellate Court the petitioner filed a suit on 5‑9‑1974 to avoid the sale on the ground of certain technical defects which was decreed on 7‑9‑1974. The respondent though not a party in the suit yet filed an appeal and the appellate Court set aside the decree and remanded the case for retrial against which order respondent filed F. A. O. No. 6 of 1976, in the High Court.
Learned counsel for the petitioner contended before the learned Single Judge that the non‑existence of a valid sale is the subject‑matter of appeal between the parties, and that, therefore, the pre‑emption matter being ancillary to that suit be stayed in the meantime'. The learned Single Judge repelled the contention holding that section 10 of the Code of Civil Procedure will not be applicable as not only the suit to pre‑empt the sale was decreed earlier but also that the causes of action iii the two suits were different. As to whether the pre‑emption decree was affected by the subsequent suit to avoid the sale the learned Single Judge h.1d that the pre‑emption decree was not affected. In holding so the learned Single Judge observed thus:
"The right to pre‑emption is not lost if the sale is retracted after once it has been exercised. The decree for declaration cannot bind the pre‑emptor even if passed against him because a cause of action which has once accrued to him would continue and in this case it has resulted in a final decree."
The conclusion of the learned Single Judge is unexceptionable, for, it was a pre‑emptible sale and the cause of action accrued to the respondent to file the pre‑emption suit under section 21 of the Punjab Pre‑emption Act when the sale was complete. It is also well‑settled that the pre‑emption decree is not affected by anything which happens subsequently. The cases in point are 119 P R 1919 and Ganda Singh v. Bhan (A I R 1923 Lah. 310).
It cannot be denied that the subsequent suit was a device to defeat the pre‑emption decree and nothing can turn on it. Moreover, the learned counsel for the petitioner conceded in the First Appellate Court that the sale was pre‑emptible. As such the issue was foreclosed and could not be agitated in second appeal.
No ground is made out for the grant of special leave to appeal and the petition is accordingly dismissed.
Petition dismissed.
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