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Regular Second Appeal No.809 of 1965, decided on 9th April, 1986.

‑‑‑S.21‑A‑‑Suit for pre‑emption‑‑Re‑sale by vendee after institution of suit‑‑Effect‑‑Any transaction in respect of pre‑empted land, taking place after institution of pre‑emption suit, held, would not defeat pre‑emptor's right.

‑‑‑S.15‑‑Right of pre‑emption‑‑Re‑sale by vendee after institution of suit‑‑ Effect‑‑Pre‑emptor being collateral of vendor and owner in estate would have better right of pre‑emption against vendee who had no such qualifications‑‑Property purchased by vendee, held, could be pre‑empted by pre‑emptor, even if vendee had re‑sold such property to co‑vendee after institution of pre‑emption suit by pre‑emptor.

‑‑‑S.15‑‑Pre‑emption‑‑Superior right‑‑Vendee proved to be owner in estate, held, would be able to defeat pre‑emptor's case to extent of share of land purchased by him from vendor although pre‑emptor was owner in estate, but was not possessed of better qualifications.

Ch. Muhammad Ishaque for Appellant.

Ch. Rafique Ahmad Bajwa for Respondents.

Date of hearing: 9th April, 1986.

This regular second appeal calls in question the judgment /decree, dated 14‑7‑1965 of the learned Additional District Judge, Lahore at Sheikhupura.

2. It was a suit for pre‑emption initially decreed by the Trial Court in favour of the appellant /pre‑emptor who had claimed to be collateral of the vendors as also an owner in the estate. He explained that joinder of two of the vendees, namely: Fareed Bakhsh and Rehmat, respondents Nos.l and 7 respectively, being completely outsiders, will have the effect of sinking the right of other vendees even though they were as much collaterals of the vendors as he himself.

3. Only the abovementioned vendees contested the suit while the others admitted it. The trial Court decreed it in toto whereas in appeal filed only by respondent No.1 defendant No.6, dismissed it accepting his contention that by having purchased respective share of the outsider respondent /defendant No.7 before the decree, he had removed the so‑called disqualification and that being equally an owner in the estate, he could defeat the pre‑emptor's suit based thereupon.

4. It has been canvassed that the resale by defendant No.7 in favour of defendant No.6 after the institution of suit was ineffective. It is not, denied that it had taken place after the institution of the present suit. Section 21‑A, of the Punjab Pre‑emption Act clearly provides that any transaction taking place after the institution of the suit will not defeat a pre‑emptor's right.. The view adopted by the learned Additional District Judge in appeal is not sustainable. The result shall be that vendee No.7 will still be held to be the owner of the respective share. The record shows that the appellant has a better right of pre‑emption, against defendant No.7 Rehmat on two accounts, namely, being collateral of the vendors and owner in the estate. Since the resale made by him will be ineffective, the respective share purchased by him will be pre‑empted by the appellant/ pre‑emptor. As regards respondent No.1 Fareed Bakhsh the case is a little different. He is an owner in the estate and at least to the extent of share of land purchased by him from the vendor Mst. Hussain Bibi, he shall be able to defeat the appellant's case as the latter was not proved to be her collateral. The qualification asserted against him viz. ownership in the estate is available to him and his rights are at par with that of the appellant.

5. As a result, the appeal is partly accepted and the suit of the appellant /plaintiff is decreed to the extent of (i) the share of the suit‑land purchased by respondent /defendant No.7 and (ii) the share sold by all the vendors in favour of the respondent No.1 Fareed Bakhsh, excepting the share purchased by him from Mst. Hussain Bibi. The amount proportionate to the share retained by Fareed Bakhsh as vendee under Mat. Hussain Bibi shall be refunded to the appellant.

6. In the circumstances of the case, the parties are left to bear their own costs.

H . B . T . Appeal partly accepted.

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