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Civil Petition for Special Leave to Appeal No. 74-R of 1982, decided on 30th May, 1982.

(On appeal from the judgment and order dated 1-8-82 of the Lahore High Court, Rawalpindi Bench to the Regular Second Appeal No. 746 of 1966).

----S. 15-Pre-emption-Limitation-Contended that right of pre-emp tion by suitor N as co-sharer being personal right same came to end on his death occurring before passing of impugned judgment and decree after limitation run out and as such legal representatives of N possessed no independent pre-emption right on date of sale nor any pre-emptive rights held by deceased N devolved on them - Held: Suitor K and petitioner derived pre-emptive powers when both impleaded as parties in suit filed by K, N being neither impleaded nor both suits filed by N and K having been consolidated, despite suit of N having been filed earlier and been pending.

M. S. Mehboob, Advocate, Supreme Court, instructed by Imtiaz Mohammad Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 30th May, 1982.

. This petition seeks leave to appeal from the judgment dated 1-2-82 of a learned Single Judge of the Lahore High Court, Rawalpindi Bench in R. S. A. No. 746 of 1966 whereby the judgment of the District Judge, Jhelum dated 12-7-1966 was upheld.

2. The petitioner purchased land measuring 27 kanals and 19 marlas in the revenue estate in village Gurah Mahal, Tehsil Jhelum by mutation No. 39 sanctioned on 13-4-1964 from Muhammad Ali. Respondent Khushi Muhammad filed a suit for pre-emption on the ground that he was a co sharer in the suit land and the suit was decreed in his favour on 8-6-1965. Another suit for pre-emption, on the same ground, was filed by Noor Muhammad, predecessor-in-interest of respondents other than Khushi Muhammad. Before the issues were struck by the trial Court Noor Muhammad died and his Legal Representatives were brought on the record and Khushi Muhammad was also impleaded as a party in the second suit. The suit filed by Noor Muhammad was dismissed on 11-5-1966 on the ground that he, having participated in the sale, has waived his right of pre-emption, and after his death the right of pre-emption did not survive. Legal re presentatives of Noor Muhammad filed a civil Suit No. -145 against the petitioner and Khushi Muhammad which was accepted by the learned District Judge, Jhelum on 12-7-66. Against this judgment and decree passed by the District Judge, Jhelum the petitioner filed the R. S. A. against the legal representatives of Noor Muhammad and Khushi Muhammad which was disposed of ex parte by a learned Single Judge of the Lahore High Court vide the judgment dated 19-4-80. A review application was filed under Order XLVII, rules 1 and 2 and Order XLV, rule 19 and section 151, C. P. C. The appeal was restored and disposed of vide the impugned judgment.

3. Learned counsel for the petitioner contended that the right of pre-emption by Noor Muhammad as co-sharer was personal right which came to an end on his death which occurred before the impugned judgment and decree were passed after the period of limitation had run out, the legal representatives of Noor Muhammad, as such, had no independent pre-emption right on the date of sale nor any pre-emptive rights held by Noor Muhammad deceased devolved on them.

4. We have considered the points raised by the learned counsel and find that both of his contentions are without any substance. Khushi Muhammad derived pre-emptive powers as well as Adalat Khan when both of them were impleaded as parties in the suit filed by Khushi Muhammad. Noor Muhammad was neither impleaded nor both the suit were consolidated despite the fact that the suit of Noor Muhammad was pending which was filed prior to the filing of suit by Khushi Muhammad. Obviously this petition has no merit and it is accordingly dismissed.

Petition dismissed.

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