P L D 1978 Lahore 299 (PLP)

M. S. H. QURASHI, J.‑This‑Regular First Appeal has been preferred by Rana Muhammad Latif Khan and Rana Muhammad Hanif Khan appellants (defendants 1 and 2 in the suit), from the judgment and decree dated 17‑3‑1976 passed by Civil Judge, 1st Class, Toba Tek Singh, decreeing the plaintiff's suit for pre‑empting the sale of land measuring 167 kanals and 4 marlas. The case of the plaintiff i.e. Kanwar Saeed Ahmad Klan, in the suit, had been that the land in question had been owned by Rana Abdur Razaq, Fazal‑ur‑Rohman, Safia Parveen, Razia Begum, Tausif‑ur‑Rehman and Mat. Qaiser B3no, who had sold the same to they four defendants, namely, Rana Muhammad Latif Khan, Rana Muhammad Hanif Khan, Aman Ulkah Khan and Farman Ullah Khan on 9‑4‑1973 in the such, actually of Rs. 1,00,000 though ostensibly of Rs. 2.11,406 in order to deter the plaintiff from pre‑empting the sale, and that be, being a collateral of the vendors and a co‑sharer in the ihata, had a superior right of pre‑emption. The suit was contested only by the appellant, the other two defendants being ex parts. The appellant's defence in the suit was that they had got the land in question by a decree passed on 30‑7‑1973, that though defendants 3 and 4 had obtained a decree on 30‑7‑1973 for half the share in the land but that decree had been nullified partly by a subsequent decree dated 3‑9‑1973 and finally by the decree dated 8‑6‑1974, and that as a decree was not a sale, the law of pre‑emption did not apply. They further pleaded that the appellants, being non‑occupancy tenants in the land, had, under Martial Law Regulation No. 115, superior right to that of the plaintiff and as such the plaintiff had no basis to sustain his claim. On the pleadings of the parties, a number of Issues had been framed, some of which had not been pressed by the appellants while the others had been decided in their favour except issue No. 4, which reads :‑ "(4) Whether the plaintiff has a superior right of pre‑emption? O. P. P." On this issue, the learned trial Judge found that the plaintiff was a collateral of the vendors and a co‑sharer in the Khata of the said land. On the other hand, he accepted the appellants' claim to be tenants in the land and as such having the first right of pre‑emption, but finding that by associating with defendants 3 and 4 in the purchase, they had sunk down to the level of those defendants, whose rights were inferior to that of the pre‑emptor, hold that the appellants could not, in view of P L D 1971 Lah. 171, resist the plaintiff's suit. He further came to the view that the subsequent improvement made by the appellants by acquiring the shares of the other defendants was of no avail. In this view of the matter, he decreed the plaintiff's suit on his depositing the entire sale price of Re. 2,11,406.

2. Since the appellants have referred to certain decrees, a brief description of the suits in which such decrees had been passed, may be given at the outset. These suits are :‑ "(i) Suit No. 661 of 1973 instituted on 29-6‑1973 by Rana Muhammad Latif Khan and Rana Muhammad Hanif Khan against Rana Abdur Razaq etc. vendors for a declaration that the plaintiffs were owners by purchase of the land in question by deed dated 9‑4‑1973, and for an injunction. The suit eras decreed on 30‑6‑1976 on the basis of admission made by the defendants. (ii) Suit No. 741 of 1973 instituted on 25‑7‑1973 by Aman Ullah and Farman Ullah against Rana Muhammad Latif Khan and Rana Muhammad Hanif Khan for a declaration that the plaintiffs were joint‑owners of half share in the land in question arid for injunction against interference in their possession of that half share. The suit upon admission of the appellants was decreed on 30‑7‑1973. (iii) Suit No. 777 of 1973 instituted on 31‑7‑1973 by Rana Muhammad Latif Khan and Ran Muhammad Hanif Khan against Amen Ullah and Farman Ullah for a declaration that the decree passed against the plaintiffs on 30‑7‑1973 was void and inoperative on account of the fact that the defendants had not said the price except for 36 kanals and 3 marlas of the land. Upon the defendants admitting the plaintiff's claim, this suit. too was decreed on 3‑9‑1973. (iv) Suit No. 82 of 1974 instituted on 16‑2‑1974 again by Rana Muhammad Latif Khan and Rana Muhammad Hanif Khan against Aman Ullah and Farman Ullah for a declaration that the plaintiffs had become owners of the entire land in question on account of sale made in their favour by the defendants of the remaining portion I.e. 36 kanals and 3 marlas. The claim having been admitted by the said defendants in their written statement, the suit was likewise decreed on 8‑6‑1974."

3. The grounds taken in the appeal and urged before us are that : (i) the principle of sicker was not applicable to the Punjab ; (ii) the appellants having acquired the land under a decree passed on 30‑7‑1973 against the vendors, and decree not being a sale, the pre‑emption law would not apply ; (iii) the original sale of the suit land had been in favour of the appellants alone and as such the question of their joining strangers did not arise ; (iv) the appellants being tenants in the land, had indefeasible right of pre-emption by virtue of para. 25(3)(4) read with para. 3 of M. L. R. 115 ; and (v) the share in the land obtained by Aman Ullah and Farman Ullah Khan; under the decree passed on 30-7-1973 had reverted to the appellants under the subsequent decree passed on 3-9-1973 and in any case the entire land having been acquired within the period of limitation by the appellants by virtue of the decree passed on 8-6-1974 in the last of the aforementioned suits i.e. No. 82 of 1974, the appellants had cast off their dissability, if any, attaching to their right."

4. The contention on the first point was that there being no provision in the Punjab Pre-emption Act (I of 1913) corresponding to that of section 19 of the N.-W. F. P. Pre-emption Act (XIY of 1910). the principle of sinker could not apply to the Punjab. Section 19 of the N.-W. F P. Act reads m under : "

19. Where the purchaser having equal or superior right to the pre-emptor joins with him a person having no right or having right inferior to the pre-emptor, the purchaser loses his preferential right." It is true that the Punjab Act does not contain a provision similar to that of section 19 of the N.-W. F. P. Act, but the contention must, nevertheless, fail in view of the chain of authorities of longstanding that the principle doer hold good under the Punjab law. See Imam-ud-Din and another v. Nur Khan and another (10 P R 1884), Murad v. Mine Khan etc. (94 P R 1895), Achhru ate. v. Labhu etc. (48 P R 1907), Yakub Khan v. Karman etc. (66 1 C 466), Baghwana etc. v. Shadi etc. (A I R 1934 Lah. 878), Hayat Bakhsh v. Mansabdar Khan etc. (A I R 1935 Lah. 529), Pandit Harbangwan Das v. Sardar Partab Singh etc. (A I R 1538 Lah. 242) and Muhammad etc. v. Ali Muhammad Din etc. (A I R 1911 Lah. 444). These authorities had proceeded from the view that the policy of the Pre-emption Act was to keep out strangers and thus maintain the exclusiveness of the estate. It had, thus, consistently been held that if a vendee having an equal right of pre-emption associates with himself in a joint purchase a stranger or a person having no right to first refusal under the Act, he loses his right of resistance and cannot be allowed to retain even his own share of the purchase. The rule so laid down was followed by a Division Bench of this Court in Mat. Fateh BIN v. Ahmad Khan etc. (P L D 1971 Lah. 171) wherein it was expressed : "If a purchaser. having an equal right of pre-emption, associates with himself in the purchase a person with rights inferior to those of the pre-emptor, he is not entitled to resist the claim of such preemptor even in respect of his own share of the purchase. The purchaser in such a case would be deemed to have sunk down to the level of his associate and therefore, would not be entitled to resist pre-emption even qua his own share.". Again in Alta held : "It is well-settled that it is only with a view to retain the homogenous completion of the estate that a stranger is sought to be kept out in exercise of the right of pre-emption. It is equally well-established that a co-sharer by associating himself with a stranger is also relegated to an interior position making himself vulnerable to the exercise of right of the pre-emption by another cc-sharer who may otherwise be at par with him." The principle was also impliedly held by the Supreme Court, in Abdullah etc. v. Abdul Karim (P L D 1968 S C 140) to be applicable to the Punjab.

5. The second point raised is equally devoid of merit because the appellants, by their own pleadings in Suit Ids. 661 of 1973, derived their right in the land not from the decree in that suit but from-the sale dated 9-4-1973. In their plaint in that suit, they had asserted :

6. The neat contention of the appellants that they alone had been the vendees is also without substance because in reply to the assertion made by Aman Ullah end Farman Ullah in their Suit No. 741 of 1973, that they (Aman Ullah and Farman Ullah) had shared the land in equal half with the appellants from the very beginning and had paid half the price through the appellants, the appellants had conceded the spire in their written statement in the words : Again : It is to be noted that on the basis of these admissions made by the appellants, the said suit had been decreed in favour of Aman Ullah and Farman Ullah.

7. The appellant's claim to the first right of pre-emption is based on the following provision contained in clause (d) of sub-para. (3) of para. 25 of M. L. R. No. 115, which is as below "25(3) As from Kharif 1972 .. (d) Subject to other provisions' of this Regulation, a tenant has the first right of pre-emption in respect of the land comprised in his tenancy." The trial Court, as already mentioned, had hold that the appellants were tenants and were entitled to the status of having the first right of pre-emption. This finding was not controverted before us by learned counsel for the respondent, whose argument proceeded mainly from the principle of sinter on the authority of P L D 1971 Lah.

171. This brings us to the question which forms the last point advanced on behalf of the appellants, i.e. whether by the acquisition of the share of Aman Ul1ah and Farman Ullah, the appellants had succeeded in casting off their disability so as to defeat the pre-emptor's right. As already noted, the pre-emptible tale took place on 9-4-1973, and the pre-emptor Kanwar Saeed Ahmad Khan filed his suit on 4-4-1974, which was decreed in his favour on 17-3-1976. The appellants had acquired finally the entire share of Aman Ullah and Farman U11ah in the land in question by the decree passed on 8-6-1974 in their Suit No. 82 of 1974. The appellants have in ground (e) of the grounds in the appeal admitted that t "at the time the respondent brought a suit for pre-emption the aforesaid Aman Ullah Khan and Farman Ullah Khan were owners of 36 kanals 3 marlas which too was surrendered in favour of the appellants in suit instituted on 16-2-1974 by the appellants vide decree dated 8-6-1x74 . . . . ." The appellants had, thus, been able to remove their disability on 8-6-1974 which was after the institution and during the pendency of the suit. Prior to the amendment in the Act, the view that had prevailed in this Court as reflected in Hapat Bakhsh v. Mansabdar Khan and All Muhammad etc. v. Muhammad Din etc. was that such disability could be cast off even during the pendency of the suit But the position changed by insertion of section 21-A in the Act by the amending Punjab Act No. I of 1944, which lays down : "21-A. Any improvement, otherwise than through inheritance or succession, made in the status of a vended-defendant after the institution of a suit for pre-emption shall not affect the right of the pre-emptor-plaintiff in such suit."

8. The appellant's case is, thus, hit by the provision of section 21-A, as the improvement in their status was effected after the institution of the suit. Attempt was made to overcome the difficulty by advancing the proposition that the right vested by M. L. R. 115 would supervene and be unaffected by the Punjab Pre-emption Act and that in any case the share of the strangers being specified and identifiable, the appellants could resist the suit at least to the a tent of their own share. The basis of the first proposition was said to be para. 3 of the Regulation, which is as below : "

3. Regulation to override other lawn etc.-The provisions of this Regulation and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary in any other law, or in any order or decree of a Court or tribunal or other authority, or in any rule or custom or usage, or in any contract, instrument, deed or other document." So far as recognition of the appellants' "first right of preemption" is concerned, nobody has disputed that. Nor is there any contest to giving effect to that right so long as the right remain; unsoiled by a disability not cured by the Regulation. Nothing was shown in the said Regulation to suggest that the disability attaching to such right could be washed away. The right vested under the Regulation, thus, enables the tenant only to B be placed prior-most in the list of persons claiming right of pre-emption, but the disability such as in the present case has to be regulated In a pre-emption suit by the law governing that suit. At least we do not see anything in the Regulation to suggest that the very concept underlying the pre-emption law i. e. to keep the stringers out of the property, has been negatived by the Regulation.

9. For the second proposition that the strangers here had held the specific share of fifty per cent. of the land for which they had paid the price and as such the appellant's right in respect of their half share would be unaffected, reliance was pl toed on Abdullah ate. v. Abdul Karim etc. but in that case : "The vendee, according to this document, were divided into six groups, and against each group was mentioned the area of land acquired by the group as well as the share acquired by that group out of the total number of s' =aces purchased, and at the end it was stated that the amount of Rs. 18,000 had been received by the vendors according to the respective shapes of the vendees." In the matter before up, no such demarcation of the area is in evidence. Even on the question of payment, the pleadings of the appellants and the strangers in their suits had been conflicting. In Suit No. 741 of 1973, the strangers had, as already noted earlier, asserted to have made payment in respect of their half share ,in the land through the appellants, which fact had been admitted by the latter in their written statement and a decree had been passed on that admission. But the appellants in the subsequent Suit No. 777 of 1973, had asserted that the strangers bad failed to pay their share of the purchase price in the land except for 36 kanals and 3 marlas.

10. For the reasons discussed above, the appellants cannot succeed because by associating the strangers in the purchase, they became relegated to the status of those strangers who hold no right comparable to that of the pre-emptor, and because the disability so incurred had continued to remain until after the institution of the suit on 4-4-1974. The appeal is, therefore dismissed with costs. S. Q. Appeal dismissed.