1994 PLP 1070 (MLD)

4. Feeling aggrieved from the above decision, Allah Bakhsh son of Haider preferred appeal which was accepted by the learned first appellate Court vide a decision dated 26-5-1976. The learned first appellate Court did not agree with the conclusion reached by the first Court on the questions of nature of the suit and the price of the pre-empted land. With reference to first question, it was held by him that at the time of institution of the suit, Ghulam Shabbir was minor, he had no independent means of income to finance the litigation; that his own father Hussain Bakhsh had stated in Court that the suit was filed by his next friend for the benefit of Karim Bakhsh/vendee. With regard to the second question, he concluded that the pre-empted land had been sold for a sum of Rs.5,200 as stated by P.W. On these conclusions, the learned first appellate Court reversed the findings of the Court below on Issues Nos. 2, 5 and 6, dismissed the suit filed by Ghulam Shabbir and decreed the suits of Allah Bakhsh son of Haider as well as of Allah Bakhsh son of Allah Diwaya, in following terms: "As a result of my aforesaid conclusions, I accept this appeal, set aside the judgment and decree of the learned trial Court and while dismissing the suit of respondent No. 6 as being collusive and for the benefit of the vendee, I grant the first decree to the appellant on payment of Rs.5,

200. He is directed to deposit the pre-emption money within one month failing which his suit shall automatically stand dismissed. In such an event the second pre- emptors, namely Allah Bakhsh and Muhammad Hassan present respondents Nos. 4 and 5 shall have the second decree for the same amount who shall be liable to deposit the sale price within one month from the date of dismissal of the suit of the appellant failing which their suit shall also ' stand dismissed .." Against this decision Ghulam Shabbir and Karim Bakhsh/vendee have preferred R.SAs. Nos. 536 and 528 of 1976, respectively.

5. On behalf of Ghulam Shabbir/appellant, the following points were raised: Firstly: that the learned first appellate Court had set aside well-reasoned finding of the first Court on Issues Nos. 2, 5 and 6 without giving an, cogent reason in support of his conclusion. Continuing, learned counsel contended that onus to prove .Benami nature of the suit was exclusively upon the second pre-emptor; that he did not effectively substantiated his allegation and remained contented with producing Imam Bakhsh D.W.1 and Rab Nawaz D.W.2. Imam Bakhsh did not utter a single word with respect to nature of the suit while Rab Nawaz made a sweeping statement/saying that suits filed by all pre-emptors were for the benefit of vendee. According to the learned counsel, his testimony did not prove that the suit filed by Ghulam Shabbir was Benami in nature. Secondly: that from the statement of P.W.1 and P.W.3, it was clear that the price of the land was Rs.18,000 and not Rs.5,200 as determined by the first appellate Court.

6. Learned counsel for Allah Bakhsh son of Haider supported the impugned decision. He, at the outset, raised preliminary objection to the maintainability of these appeals by saying that the valuation for the purpose of jurisdiction in the pre-emption suits was less than Rs.5,000 and so the second appeal against the impugned decision was not competent. According to the learned counsel, the appellants had only remedy of filing revision under section 115, C.P.C. On this premises, it was represented that the appellants had not filed any application for conversion of memo of appeal into revision. It was suggested that the appeals in hand were incompetent and merited to be dismissed. On merits, it was contended that questions pertaining to Benami nature of the suit and price of pre-empted land, were essentially of facts and as such findings of Court below on these points, were not susceptible of interference in revisional jurisdiction of Court. The learned counsel for the Ghulam Shabbir, in reply, submitted that if this Court came to conclusion that the regular second appeal filed by Ghulam Shabbir was not competent, then the memo of second appeal be graciously treated as memorandum of revision. Reliance was placed on Muhammad Hanif v. Muhammad PLD 1990 SC 859.

7. From the foregoing narration, following questions fall for determination: (1) Whether the first appellate Court, on facts, and circumstances of these cases, had set aside the findings of trial Court on issues Nos. 2, 5 and 6 with patent error of law and material irregularity. (2) Whether the instant appeals filed by Ghulam Shabbir/pre-emptor and Karim Bakhsh/vendee, were incompetent and this Court had no jurisdiction to treat their memoranda as that of revision.

8. Having noted the facts, circumstances of the case, submissions made by the learned counsel for the parties and points for decision, I herein proceed to determine them one by one. Before I deal with first questions, it seems necessary to reiterate that the right of pre-emption is a personal right. It is a `jus ad rem alienam acquirendam' and not a `jus in re aliena'. It is a personal right belonging to persons who possess certain statutory qualifications, exercisable in respect of sale of certain immovable property. The pre-emptor is, ordinary, presumed to come to Court for his benefit unless and until contrary is established. The onus of establishing that pre -emptor has come to Court for the benefit of others is essentially upon the person who alleges it. The leading authority on the subject is Muhammad Bakhsh v. Hassan Bakhsh 7 Punjab Record 1912. Mr. Justice Chevis, while delivering the opinion on behalf of Division Bench of erstwhile High Court of Lahore, said: "It is urged for the vendees, that the plaintiff has .no money of his own, and is merely a Benami pre-emptor, and in this connection 139 P.R. 1984 and 19 P.R. 1898 are quoted. In the former ruling we find that one learned Judge (Bullock, J.:) expressed the opinion that, if it could be shown that the suit was not brought bona fide for the benefit of the plaintiff, the suit must fail, but this opinion was not shared by the other learned Judge (Benton, J.) who wrote: `A Benami pre-emptor is, to my mind, an inadmissible notion; we are not concerned with what the plaintiff may do with the land after he has got it. We note that as Bullock, J. found in the end that it was not proved that plaintiff was not suing for his own benefit, his remarks as to the necessity of bona fides on the part of a pre-emptor are obiter dicta. In 19 P.R. 1898 the head-note (`when it is proved that a plaintiff in a pre-emption suit is acting Benami the Court should refuse the nominal plaintiff a decree'.

K.J.R.) is misleading; the question whether a Benami pre-emptor is entitled to get a decree was not the real point for decision in that case. The later rulings are all to the effect that the Courts are not concerned with the questions, where the pre-emptor is raising the money and what he is going to do with the land and this is our opinion. A man who has a right of pre-emption has merely to produce the money just as any other purchaser; he can no more be asked `what are you going to do with the land' or `where did you raise your money', than any purchaser in a shop could be asked such questions by the shopkeeper. The pre-emptor has nothing to do but to prove his right to take over the bargain and when he has proved this right all that he has left to do is to produce the money within the time fixed by the Court. If in any such case the pre-emptor is buying the property for an outsider, and if after securing the property, he transfers it to the latter, it may be open to another pre-emptor to challenge the second transfer and to claim pre-emption in respect thereof. This right is, in our opinion, a sufficient safeguard against benami transactions of the kind:' The view taken in the case of Muhammad Bakhsh v. Hussain Bakhsh (supra), was followed in 103 P.R. 1914, 58 P.R. 1912, 1915 (31) I.C. 635, (1918) I.C. 137, (1920) Lah. L.J. 58 and LAI Din v. Allah Ditta PLD 1967 Lah. 703.

9. Applying this rule to the facts and circumstances of this case, it is quite clear that Allah Bakhsh was obliged to establish by strong, cogent and unimpeachable evidence that Ghulam Shabbir had filed suit for the benefit of Karim Bakhsh/vendee. Did he discharge his burden of proof? The answer seems to be aloud `no'. The evidence adduced by Allah Bakhsh son of Haider pre-emptor comprises of two witnesses, namely, Imam Bakhsh D.W.1 and Rab Nawaz D.W.2 Imam Bakhsh D.W.1, exhibited total silence with respect to allegation; that Ghulam Shabbir had sued for the benefit of vendee. D.W.2, as usual, deposed in sweeping manner that all the pre-emptor suits had been filed for the benefit of vendee. Allah Bakhsh himself did not enter witness-box to substantiate his allegations. From this evidence I have no difficulty in coming to the conclusion that Allah Bakhsh/rival pre-emptor failed to discharge the onus of proof to substantiate that the pre-emption suit filed by Ghulam Shabbir was Benami in nature and was in fact for the benefit of Karim Bakhsh/vendee. The concessional statement made by Hussain Bakhsh P.W.1, in cross-examination cannot be treated as legitimate circumstance holding that the suit filed by Ghulam Shabbir was for the benefit of vendee. The evidence furnished by Allah Bakhsh son of Haider in my opinion, was clearly insufficient in quality as well as quantity to prove that the suit filed by Ghulam Shabbir was for the benefit of vendee. It needs not to be repeated successful pre-emptor has to show that he is capable to deposit the money life as any other purchaser within the time prescribed by the Court and Court is not concerned with his source of money or what he will do with pre-empted property in future.

10. On the above analysis I have no doubt in my mind that the findings of the appellate Court on Issue No.2, is contrary to rule laid down in precedents noted -above. It, therefore, cannot be sustained. I accordingly reverse the conclusion of appellate Court on Issue No.2 and restore that of the learned trial Judge.

11. As regards the price of the land, it is sufficient to note that none of the learned counsel firmly supported the findings of the appellate Court. The learned counsel, appearing on behalf of Ghulam Shabbir stated that he was prepared to pay Rs.18,000 to the vendee as determined by the first Court. Similarly the learned counsel appearing -on behalf of Allah Bakhsh/rival pre -emptor also feebly supported the finding of the learned appellate Court on Issues Nos. 5 and 6.

12. Furthermore, it is clear from the statement of Hussain Bakhsh P.W.1 and Allah Bakhsh P.W.3 that the price of the suit land, at the relevant time was Rs.3,000 per acre. If this is to be accepted as true, the price of the land comes to Rs,18,

000. On this material the learned appellate Court was clearly in error in holding that the price paid by vendee to the owner was Rs.5,200 as stated by P.W.3. This conclusion was clearly in result of misreading and non-reading of the statements of P.W.1 and P.W.3. This conclusion, is, therefore, not sustainable in the eye of law, being contrary to the principle of objective assessment of evidence. I, therefore, reverse the findings of the first appellate Court on Issues Nos.5 and 6 and restore the findings of the trial Court on these issues. 13 Reverting to second question, suffice it to say that it has been conclusively determined in Karamat Hussain v. Muhammad Zaman PLD 1987 SC 139. "Thus, if the second appeal that is brought before the High Court exhibits certain features which demonstrate that it falls within the scope of interference under section 115, C.P.C., the Court should exercise its jurisdiction under the said provision of law. It hardly needs saying that the Court will be in a position to examine this aspect of the matter only if it considers the facts of each case and this can only be done if the appeals are treated as revisions whereafter the question can be examined by the High Court whether the Court subordinate to it has exercised a jurisdiction not vested in it by law or has failed to exercise its jurisdiction so vested or acted in exercise of its jurisdiction illegally or with material irregularity. True, the exercise of this jurisdiction by the High Court is discretionary but that does not mean that a revision is not a right but only a privilege. A privilege is some particular benefit or advantage conferred on a person or a class of persons which other citizens do not enjoy while a right is some benefit conferred on a person by virtue of a given law. Here, the provisions of section 115 of C.P.C., confer on every persons who has litigated before a Court subordinate to the High Court the right to assert before the latter that the decision rendered by the subordinate Court against him is liable to correction under its revisional jurisdiction. Indeed where the conditions for the exercise of revisional jurisdiction are satisfied the High Court should itself interfere. Of course, it may in certain circumstances, in exercise of its judicial discretion refuse to exercise its discretion in favour of the petitioner such as where the petitioner has approached the Court without reasonable cause with undue delay or his conduct has been contumacious or because of the existence of some other special circumstances which disentitle him from relief. But the mere fact that the exercise of revisional jurisdiction is discretionary does not mean that it is a privilege. Even the Writ Jurisdiction conferred upon the High Courts by the Constitution is discretionary. But the right to apply for a writ is certainly not a privilege. On the contrary, it is one of the most valuable rights that can be conferred upon a citizen. In the cases before us the second appeals were filed within the period of limitation and at a point of time when there was some controversy as to the rule to be applied for ascertaining the jurisdiction. value of suits of the kind involved in these appeals. This controversy was settled only recently by the pronouncement of this Court in Ilahi Bakhsh and others v. Mst. Bilquees Begum PLD 1985 SC

393. We, therefore, consider that the High Court should have allowed conversion of the second appeals filed by the appellants into revisions and then proceeded to see whether interference was called for in the judgment subordinate to it, in exercise of its jurisdiction under section 115, C.P.C." Guided by the above rule I have no doubt in treating the memorandum o: these appeals as memorandum of revisions under section 115, C.P.C. as I have already concluded that the findings of the first appellate Court on Issues Nos.2. 5 and 6 are in defiance of rules laid down in the precedents of superior judiciary noted above.

14. As a result of above discussion, these revision petitions succeeded, the judgment and decree passed by the learned Additional District Judge, Mianwali dated 26-5-1976, is hereby set aside and the judgment and decree passed by the Civil Judge, 1st Class, Bhakkar dated 30-10-1975 is hereby restored. If Ghulam Shabbir had not deposited the pre-emption money as required by the decree of the first Court, he shall deposit it in the Court within two months of this order. 1n case of default Allah Bakhsh/rival pre-emptor shall deposite the amount within a period of two months commencing from default of Ghulam Shabbir. In case of latter's failure the third pre-emptor shall deposit the pre-emption money within two months commencing thereafter. There shall be no order as to costs. A.A./K-118/L Revision accepted.