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Regular First Appeal No. 239 of 1984, heard on 19th March, 1985.

Punjab Pre-emption Act (I of 1913)--

---S. 15--Right of pre-emption--Plaintiff's suit for pre-emption on ground -of ownership in Khata--Defendants had sold disputed land to person having proprietary rights in joint Khata before institution of suit- Subsequent vendee, held, acquired better rights to purchase suit land in preference to appellant who was merely owner in estate--Such right having been acquired before period of limitation by subsequent vendee, plaintiff, held, could not legally pre-empt sale of suit land in favour of subsequent vendee in circumstances.

Ch. Mushtaq Ahmed Khan for Appellant.

Taqi Ahmed Khan for Respondents.

Date of hearing: 19th March, 1985.

The facts giving rise to this regular first appeal are that on 6-10-1981 land measuring 120 Kanals 6 Marlas Situated in village Dhodha, Tehsil Pasroor, District Sialkot, was purchased by respondents Nos. 1 to 3 for Rs.60,000 by means of Mutation No. 240, dated 6-10-1981. Mst. Khurshid Begum appellant instituted a suit in a Civil Court on 6-10-1982 to pre-empt the aforementioned sale contending that being owner in the Khata, out of which the suit land was sold, she was entitled to purchase the land in question in preference to the respondents. According to her the land had been purchased by the respondents for Rs.40,000, which was also its market value, and that the price of Rs.60,000 as shown in the mutation was fictitious. After the filing of the suit the appellant impleaded Gian Masih respondent No. 4 as defendant as the disputed land had been purchased by dim from respondents Nos. 1 to 3.

2. The suit was contested by the respondents but before the settlement of issues Gian Mssih respondent No. 4 submitted an application under Order XIV, rule 5, C.P.C. praying that the question regarding superior right of pre-emption claimed by the appellant may be determined first by framing a preliminary issue because respondent No. 4 had purchased the suit land on 12-5-1982 before the institution of the suit and had also become owner in .the, Khata by purchasing another piece of land by means of registered sale-deed dated 17-6-1982 in respect of which appellant's suit for possession through pre-emption was dismissed on 7-9-1983 due to her failure to deposit Zar-e-Panjum. The trial Court allowed the above application and framed the following issue:-

"Whether the 'plaintiff has got superior right of pre-emption O.P.P."

The parties led evidence in support of their respective contentions. The appellant's claim of being a co-sharer in the Khata, in which the suit land was situated was not proved, though her ownership in the estate, in which the suit land was situated, was established. Gian Masih respondent No. 4 tendered in evidence sale-deed Exh. D.2 by which he purchased the suit land on 12-5-1982. He also produced sale -deed Exh. D.1 through which he purchased land in the Khata in which the suit land was situated on 17-6-1982. The trial Court, relying on the documentary evidence produced by respondent No. 4, came to the conclusion that the appellant had failed to establish her superior right of pre-emption as against respondent No. 4 .and decided the issue against the appellant and dismissed her suit. The appellant has filed the instant appeal against the judgment and decree dated 4-7-1984 passed by the trial Court.

3. We have heard the parties counsel. The suit land was sold by respondents Nos. 1 to 3 to respondent No. 4 before the filing of the suit by the appellant. The above sale, however, could not defeat the appellant's right of pre-emption, if respondent No. 4 had not become owner in the Khata, in which the suit land was situated by purchasing 1/8th share from Mst. Sharifan Bibi, widow of Faqir Din, through her general attorney Ali Hassan by means of registered sale-deed Exh. D.1. Gian Masih respondent No. 4 thus acquired better right to purchase the suit land in preference to the appellant, who was merely an owner of land in the estate. The above right was acquired by respondent No. 4 before the period of limitation, prescribed for instituting the suit to pre-empt the sale made in favour of respondents Nos. 1 to 3, expired. The disputed land was also purchased by him from respondents Nos. 1 to 3 before the expiry of the prescribed period of limitation. The appellant, under the circumstances, could not legally pre-empt the sale of the suit land effected on 6-10-1981. The finding of the trial Court under issue No. 1 is unexceptionable and is accordingly affirmed.

In view of what has been stated above there is no force in this appeal and the same is hereby dismissed with costs.

A . A .

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