P L D 1962 (W (PLP)

KAYANI, C. J.--‑This is a first appeal in a pre‑emption suit by a person to whom the vendee sold the land in suit in recognition of his pre‑emotive right while the plaintiff's suit was pending.

2. On the 19th of August 1957, Nur Muhammad sold his land, 64 kanals in area, in the village Thul Wazir of Rahimyarkhan Tehsil, to Mehr Din, respondent No. 2, ostensibly for Rs. 8,

000. On the 29th of March 1958, Shahro Khan filed a suit for posses sion by pre‑emotion, the basis of the claim being that he was a co‑sharer in the land sold.

3. While steps were being taken to effect service on the vendee, on the 1st of September 1958, Ghulam Tayyib, the present appellant, brought another pre‑emotion suit in respect of the same land against Mehr Din and obtained a compromise decree fourteen days later, that is, on the 15th September. On the 20th of September 1958, since service had been effected in the present suit on a son of Mehr Din, the Court ordered that proceedings be taken ex parte against him, and directed the plaintiff to produce his evidence on the 29th of October 1958. On that date, however, Mehr Din presented himself with a written statement In which he said that he had transferred the land to Ghulam Tayyib In recognition of the latter's pre‑emotive right as established by the decree in his favour. This altered the complexion of the suit of Shahro Khan who, on the 15th of November 1958, put in an amended plaint impleading Ghulam Tayyib as second defendant and Fazal Din, a relative of Ghulam Tayyib as third defendant. The reason for impleading Fazal Din was that he was stated to have taken possession of the land in suit as a mortgagee. In actual fact, it was some other land which had been mortgaged to Fazal Din.

4. In the amended plaint Shahro Khan claimed that the decree obtained by Ghulam Tayyib was collusive and that, in fact, it was for the benefit of Mehr Din vendee. He also claimed to possess a superior pre‑emotive right than Ghulam Tayyib.

5. In reply, Gbulam Tayyib stated that he was not aware of Shahro Khan's suit when he instituted his suit against Mehr Din, that the decree was not for Mehr Din's benefit and that he had mortgaged other land to Fazal Din for Rs. 12,000 on the day of the compromise in order that he should be able to make payment of the present sale money to Mehr Din.

6. The following issues were struck :‑ (1) Did Mehr Din agree to a consent decree in favour of Ghulam Tayyib collusively? Was it for the benefit of Mehr Din and what Is its effect on the present suit ? (2) If issue No. 1 Is proved, has the plaintiff a superior right to Ghulam Tayyib ? (3) Was the price fixed at Rs. 8,000 In good faith ? (4) What is the market value of the land In suit ?

7. The plaintiff admitted that the price paid was Rs. 8,000, and thus there remained only two issues for decision. The trial Court decided that the suit of Ghulam Tayyib was collusive, and that as it was intended for the benefit of Mehr Din vendee, the decree had no effect on the plaintiff's right. On the second point, the decision was that the plaintiff's right was not superior to that of Ghulam Tayyib. It is not clearly stated that their rights are equal, but since both are co‑sharers in the khata to which the land in suit belongs, it is agreed by counsel for the parties that they are on an equal footing and that, other things being equal, they would be entitled under section 17 (a) of the Pre‑emotion Act "in proportion among themselves to the shares they already hold in the land or property."

8. In order to show that the suit of Ghulam Tayyib was not collusive, learned counsel for the appellant pointed out that even his father, Dur Muhammad, had instituted a pre‑emotion suit in respect of this land on the 9th of November 1957 (Exh. P. R.) The court‑fee affixed on the plaint being deficient, he was required A to make it up by the 4th of December 1957. On that date, he was reported to be ill and the case was adjourned to the 6th of December 1957. On that date, he was absent, and as the court‑fee had not been paid, the plaint was rejected. He died on the 23rd of December 1957, and it can be reasonably assumed that he could not pursue his suit by reason of illness.

9. It is noticeable, however, that Ghulam Tayyib did not appear for his father during the latter's illness and did not pursue his father's suit until eight or nine months later. It would appear that until then he was not interested in the case and it has to be seen whether his interest was roused by Mehr Din vendee. The present suit was filed on the 29th of March 1958 and the vendee was summoned on the 10th of April for the 9th of May. He was not served and the case was adjourned to the 10th of June for the same purpose. Then it was adjourned to the 4th of July and the 30th of July and the 20th of September 1958, each time by reason of non‑service. On the 20th of September 1958, it was found that the process‑server had been able to get hold of Mehr Din's son on the 4th of August 1958 and to effect service on him. Proceedings were, therefore, directed to be taken ex parte and the case adjourned to the 29th of October 1958. Now, although the vendee claims to have been ignorant of the suit of Shahro Khan throughout the summer, when service was at length effected on his son on the 4th of August 1958, Ghulam Tayyib's interest was also roused and he filed his suit on the 1st of September 1958. The file of that case shows that no summons was issued on Mehr Din for his appearance. Fourteen days later, however, i.e., on the 15th of September 1958, he appeared in Court In Ghulam Tayyib's case and presented a compromise, by which he purported to have received the sale money from Ghulam Tayyib, and a decree was immediately passed in Ghulam Tayyib's favour. The trial Court has pertinently remarked that if Mehr Din was so anxious to concede Ghulam Tayyib's right to pre‑empt, why was it necessary for Ghulam Tayyib to go into the expense and inconvenience of instituting a suit which cost him over Rs. 200 in court‑fee alone ?

10. It was argued for Ghulam Tayyib that on the 15th of September 1958, the day on which the decree was passed in Ghulam Tayyib's favour, the latter had mortgaged other property to Fazal Din with a view to procuring money for the present transaction. This mortgage deed is a registered document, but payment was not made before the registering officer and there is no reliable evidence that any money was paid even is Mehr Din.

11. It was then argued that if the suit had in fact been collusive, Mehr Din would not have transferred possession of the land to Ghulam Tayyib. Reliance was placed on Exh. D. A/2, copy of the khasra girdawari, which showed that only two killas out of eight, namely, killa No. 23 of rectangle No. 412/6 and killa No. 3 of rectangle No. 412/7, were shown to be in posses sion of Mehr Din "under Ghulam Tayyib". Learned counsel claimed that the entries against the eight killas were basharah sadar or basharah killa No. 23 on basharah killa No. 3, which meant that in these killas also Mehr Din was now a tenant under Ghulam Tayyib. The very fact that Mehr Din is a tenant under Ghulam Tayyab makes the matter doubtful, but apart therefrom, we are not satisfied that the entries in the khasra girdawari where the word "basharah" alone has been used (and this word has been used alone in several entries) necessarily mean that cultiva tion is to be deemed to be that of Mehr Din under Ghulam Tayyib. It would perhaps be safer to be guided by the evidence of the Patwari who prepared this unsatisfactory document. The Patwari, Nabi Bakhsh, was produced as a witness by Ghulam Tayyib himself, and he made the following statement: "I have brought the khasra girdawari from kharif 1954 to kharif 1958, and produce a correct copy of it. It is correct that until the kharif of 1958 Ghulam Tayyib was not in possession of any part of this khata, but killa No. 23 of rectangle No. 412/6 and killa No. 3 of rectangle No. 412/7 are shown to be In possession of Ghulam Tayyib in Rabi 1959. They are shown to be in possession of Mehr Din under Ghulam Tayyib." In cross‑examination, he stated that Ghulam Tayyib's name had been recorded "without possession having been given to him", because there was no report in the roznamcha showing that possession had changed from one person to another, nor had the change effected in the khasra girdawari been certified by anybody. The original entry, he said, had been made by his predecessor. Next, he stated unequivocally that in this khata Ghulam Tayyib's possession was not shown 9n any other killa, and counsel for Ghulam Tayyib did not ask him to elucidate the entries against which basharah or basharah sadar were recorded.

12. These are consequently doubtful entries and we cannot hold on the basis of these entries that possession had passed to Ghulam Tayyib. It may be that the words "that Ghulam Tayyib" were added to "Mehr Din", subsequently and collusively.

13. On this evidence we agree with the learned trial Court in holding that the suit of Ghulam Tayyib was intended for the benefit of Mehr Din. In this view of the case, Shahro Khan's suit was rightly decreed and the appeal should be dismissed.

14. We would like, however, to give our views on the legal position that would arise in the event of the sale in Ghulam Tayyib's favour being a genuine transaction.

15. The appellant's counsel first invited our attention to Manpal v. Sahib Ram (I L R 27 All. 554) where, according to him, it was held that if after the filing of a suit for pre‑emption but before service of summons the vendee re‑sold the property to another person with a superior right, the plaintiff's suit would be defeated. In that case, however, although the matter had been referred to the Full Bench on the question, whether the doctrine of his pendens applies to suits for pre‑emption, the learned Judges, on finding that the second vendee had been impleaded by the plaintiff and his right had been found superior to the plaintiff, refused to proceed any further with the case and held that the plaintiff having himself invited an adjudication on the relative rights of himself and the second vendee, could not plead the doctrine of his pendens as a bar. No particular importance was attached to the fact that the vendee had sold the land before service had been effected on him, except in the head‑note of the Law Report.

16. Next, he relied on Mool Chand v. Ganga Jal (A I R 1930 Lah. 356), where it was held that although the rule of lis pendens applies to pre‑emption suits, it does not affect the validity of the sale effected by the vendee during the pendency of the suit to a person possessing a right of pre‑emption equal to that of the pre‑emptor. Dalip Singh, J., was doubtful whether this view was correct, but agreed that section 17 of the Pre‑emption Act "in terms" applied to a case where both claimants were "pre‑emptors"; in other words, where both had filed separate suits, and that where the second claimant had substituted himself for the vendee by a private sale, although during the pendency of the suit, he was not governed by section 17.

17. Although personally I am doubtful whether Mool Chand's case was correctly decided, it has been followed in a number of other cases and "'the question does not arise for C decision in the present case where two separate suits had been filed under section 28 of the Pre‑emption Act, which lays down that "when more suits than one arising out of the same sale or foreclosure are pending, the plaintiff in each suit shall be joined as defendant in each of the other suits and in deciding the suits the Court shall in each decree state the order in which each claimant is entitled to .exercise his right". The effect of the imperative provisions of this section is that if ones of these suits is decided in the absence of the plaintiff in the other suit, the decision cannot be binding on that plaintiffs The decree which Ghulam Tayyib, therefore, obtained without impleading Shahro Khan was obtained contrary to the provisions of section

28. In the suit of Shahro Khan, Ghulam Tayyib was impleaded as required by section 28, and if it is found that their right to pre‑empt is on the same footing, section 17 becomes applicable. Under that section, where several pre‑emptors are found by the Court to be equally entitled to the right of pre‑emption, the said right shall be exercised if they claim as co‑sharers in proportion among themselves to the shares they already hold in the land or property. This was the view taken by a Division Bench of this Court in Muhammad Akram Khan v. Kaniz Fatima Bibi (P L D J952 Lah. 489), which, incidentally, did not feel parti cularly attracted towards the majority view in Mool Chand's case.

18. In view of our finding on the first issue, however, this appeal is dismissed with costs. The plaintiff, who was allowed by this Court to withdraw the deposit, should deposit the sale money within thirty days. ANWARUL HAQ, J

‑I agree. A. H. Appeal dismissed.