1988 PLP 142 (CLC)

‑‑‑Ss. 15, 17(1) & 22‑‑Pre‑emption, right of‑‑Trial Court as well as appellate Court not attending to averments in plaint wherein the plaintiff had specifically stated that the suit land was sold as a single joint transaction by vendors in favour of vendees at a certain price, that sale mutation and exchange mutation were fictitiously effected in same context and that exchange mutation was fraudulent' and was in fact a part and parcel of sale mutation‑‑Appellate Court, however, found to have discussed evidence regarding both transactions holding that the two transactions pertained to a wholesome joint sale transaction and that the exchange mutation was simply fictitious‑ Courts below not realizing that the vendee could not possibly transfer the land in favour of another person, may be within prescribed period of limitation and before institution of pre‑emption suit, in recognition of his superior right of pre‑emption since at time of original sale vide mutation attested in his favour such person was not the owner in suit Khata‑‑Section 17(1) of N.‑W.F.P. Pre‑emption Act only recognize the transfer of property to a person having a right of pre‑emption equal or superior to that of plaintiff prior to institution of pre‑emption suit‑‑Right of pre‑emption arises in respect of land in case of its sale only and a pre‑emptor is supposed to have a superior right of pre‑emption at time of sale and to continue with a subsisting right of pre‑emption till obtaining a decree‑‑Findings of Courts below on issues of nature of transactions and superior right of pre‑emption‑‑ Transaction held, was effected by sale mutation, and was subject to exercise of right of pre‑emption and that effected by exchange mutation was immune from such right and that the plaintiff a co‑sharer, possessed ‑a superior right of pre‑emption with respect to sale mutation against vendees‑‑Appellate Court found to have determined the issue of payment of sale price in the sum of Rs.4,000 as fixed in good faith or actually paid for entire area including area of exchange mutation‑‑Evidence of witness on record that suit land was purchased by vendee for Rs.4,000 and that the price was fixed in good faith and also actually paid‑‑Such witness not seriously cross‑examined on the point‑‑Market value of suit land sold per sale mutation determined as Rs.4,000 and decree and judgment of appellate Court modified accordingly by granting a decree to plaintiff with respect to land sold per sale mutation on payment of Rs.4,000 to be deposited within two months if not already paid or deposited. Saeed Baig for Petitioners. Mian Younas Shah for Respondent No.

1. Remaining Respondents : Ex parte Date of hearing: 15th July, 1987. Vide mutation No. 53676 attested on 13‑6‑1972 Sarfaraz Khan S/o Saudad Khan transferred 14 kanals 11 marlas land in Khata No.1746 by sale to Gul Ahmad s/o Shana Mir for Rs. 4,

000. By mutation No.53656 corresponding to mutation No.53657 attested on 14‑6‑1972 Gulfaraz transferred 4 kanals 9 marlas and in Khata No. 1746 to Mir Salamat Shah and Gul Raeef Khan through exchange. Gul Ahmad, who had acquired land in 14 kanals 11 rrarlas in Khata No. 1746, transferred the same to Gul Raeef Khan by sale vide mutation Nos.19 and 20 attested on 21‑8‑1972. Gul Raeef had thus become owner of 2 kanals 4J marlas in Khata No.1746 by way of exchange and 14 kanals 11 marlas by way of sale in the said Khata while Mir Salamat Shah had become owner of 2 kanals 4# marlas land in Khata No.1746 through exchange.

2. Mohammad Nawaz and his two brothers had brought a pre‑emption suit No, 343/1 of 1973 in respect of mutation Nos.53676 dated 13‑6‑1972 and 53656 dated 14‑6‑1972 claiming that there was made a joint sale by Sarfaraz and Gulfaraz in favour of Gul Ahmad, Mir Salamat Shah and Gul Raeef and that the sale mutation No.53676 attested on 13‑6‑1972 solely in favour of Gul Ahmad and the exchange mutation No.53656 affected in favour of Mir Salamat Shah and Gul Raeef were in fact pertaining to single joint sale transaction.

3. Pending suit Gulfaraz got cancelled the exchange effected vide mutation Nos.53656 and 53657 through a registered gift deed dated 8‑6‑1973 he transferred the land back to Mir Salamat Shah and Gul Raeef earlier got in exchange through mutation No.53657. The said registered instrument was challenged by Mir Salamat Shah and Gul Raeef vide suit No.165/1 filed on 11‑7‑1975 and obtained a decree in their favour on 22‑4‑1976 resulting in the cancellation of the registered instrument and, as such the exchange mutation remained intact.

4. On the other hand pending the pre‑emption suit Mohammad Nawaz and his one brother Mamnawaz had brought suit No.271/1 of 1976 for declaration that exchange mutation Nos. 53656 and 53657 were forged, fictitious and fraudulent liable to cancellation and that in the alternative the same to be treated as sale. This suit was dismissed by the judgment and decree dated 19‑6‑1979 against which appeal was filed but was also dismissed on 28‑2‑1980. No further revision was filed in the case. In the said case trial Court had framed specific issue No.6 "Whether the suit mutations are of exchange and possession of land has not been delivered through it. "Further, issue No.8 was framed "Whether the plaintiff is entitled to the decree as prayed for." During the course of discussion on issue No. 8 the trial Court referred to the non‑acceptance of transfer back of the suit property by Culfaraz to Gul Raeef and Mir Salamat Shah as confirmed by the Court through a decree for declaration holding the gift void and vice versa the exchange valid. On the point that the transaction was a sale and not an exchange the plaintiff's evidence was found wanting while the mode of transfer through an exchange as a device employed by the vendees was approved by the Court and the issue was accordingly decide against the plaintiff. Issue No.6 was not separately discussed and decided by the same stood impliedly determined against the plaintiff; in the light of decision on issue No.8 in the said case. The issue of the form of the suit was also decided against the plaintiff for it was found hit by the proviso of section 42 of the Specific Relief Act. The learned appellate Court did not discuss the issues on merits but proceeded to assume for the sake of argument that even if the exchange mutation was held to be a sale, still the plaintiff's suit would fail under the proviso of section 42 of the Specific Relief Act for there has not been prayed for a further relief in the said suit. With the dismissal of the said suit the effect thereof was extended to the present suit by the trial Court holding that exchange mutations remained intact by virtue of decision in case No.271/1 of 1976 and that the defendants had become co‑sharers with equal right of pre‑emption thereby. He had accordingly dismissed the plaintiff's suit. A word of caution: whenever a reference is made to a decision in another case of which effect is sought to be given in the said case, the Court is supposed to place on file a correct copy of the judgment in the said file to render the file before him self contained with no necessity to call for the file for reference by the Courts of appeal and revision.

5. Now instantly there falls a question for determination if the decision in case No.271/1 of 1976 can serve as res judicata in the present case. One may answer the query in negative for Bahader Nawaz plaintiff No.3 was not a party to suit No.271/1 of 1976 and second that the said suit was although decided on merits by the trial Court but the appellate Court reopened the issue of nature of exchange transaction and assumed for the sake of argument that even if the transaction was declared a sale, still the suit would be hit by thei proviso of section 42 of the Specific Relief Act. In fact section 42 does not empower the Court to dismiss a suit where plaintiff being able to sue for further relief omits to do so. An objection herein raised at the earliest point of time should have been resolved as a preliminary issue with an opportunity to the plaintiff to ask for necessary amendment to comply with the provisions of section 42 and only in case of non‑compliance the suit should have been dismissed. Further the law on the point is settled that where a previous suit by plaintiff was dismissed under the provision of section 42 of the Specific Relief Act because a declaration in simplicitor could not be granted to the plaintiff; since under the law he should have also asked for further consequential relief in that event the decision cannot operate as res judicata in the subsequent suit and the observations of the Court in the previous suit could only be treated as being obit‑1r dicta.

6. In the case herein the Court was to record his own findings on the basis of the evidence on record if there was negotiated a single joint sale transaction as regards the whole property and that it was ostensibly effected partially through sale mutation No.53676 and partially through exchange mutation No.53656. Unfortunately the learned trial Court as well as the appellate Court did not attend to the averments in the plaint, wherein the plaintiff has specifically stated that the suit land was sold as a single joint transaction by defendants Nos. 4 to 6 in favour of defendants Nos. l to 3 at a certain price and that the sale mutation and exchange mutation were fictitiously effected in the same context and that the exchange mutation was fraudulent and was in fact a part and parcel for sale mutation No.53676. The appellate Court had, no doubt, proceeded to frame' an additional issue "whether the transaction in mutation No.53656 ostensibly an exchange, was in reality a sale and hence pre‑empted." Even the I wording of this issue does not reflect the averments in the pleadings in their correct perspective as it indicates that sale mutation No.53676 pertained to a separate sale transaction and that the exchange mutation No.53656 related to a separate sale transaction. Anyhow the learned appellate Court has been found to have discussed the evidence regarding both the transactions holding that the two transactions pertained to a wholesome joint sale transaction and that the exchange mutation was simply fictitious. I have found the parties conscious in their leading the evidence on the point if the exchange transaction was in fact a sale or not or/and a part of the joint sale transaction, with onus of the issue to be on the plaintiff. It, however, does not appear if the onus has been discharged since there has not been led evidence if there has been negotiated the transaction as a sale for a certain price paid or promised. The learned appellate Court had allowed due credence to the consent written statement (Iqbal Dawa) filed by Gulfaraz vendee‑defendant but Gulfaraz is the person who had unilaterally got the exchange mutation allowed through transfer back of the land by registered instrument to defendants Nos. 2 and 3 which was later on got set aside by the defendants Nos.2 and 3 through a decree of the civil Court. Hence the admission of Gulfaraz with clash of interest to the contesting defendants cannot be employed adversely against the latter. The learned appellate Court was further prejudicial against the defendants since exchange mutation No.53674 and 53675 were rejected on 13‑6‑1972 a day preceding the attestation of exchange mutation Nos.53656 and 53657. Exchange mutation Nos.53674 and 53675 were in between Gul Ahmad and Mir Salamat Shah, herein two of the vendees, for certain area while exchange mutation Nos. 53656 and 53657 were in between Sarfaraz Khan on one hand and Mir Salamat Shah and Gul Raeef on the other hand. The two sets of exchange mutations do not bear any relevancy inter se. Further vide sale mutation No.53676 Sarfaraz Khan sells some land to Gul Ahmad while per exchange mutation Nos.53656 and 53657 Gulfaraz exchanges his land with Mir Salamat Shah and Gul Raeef. The learned appellate Court has declared it as single joint transaction since the sister of Gul Raeef was the wife of Gul Ahmad and that Gul Raeef was further the relation of Mir Salamat Shah. I do not think that this can be a vale reason for holding the two transaction a single joint sale transaction in the absence of other cogent evidence. In the context I would also point out the contradictory position of the pre‑emptors vis‑a‑vis exchange mutation No. 53656 as in the pre‑emption suit of which the present revision petition arises they have claimed it a part and parcel of a wholesome joint sale transaction along sale mutation No.53676 while in their separate suit No.271/1 of 1976 the transaction of the exchange mutation was claimed to be a sale independent of sale mutation No.53676.

7. After having acquired a part of the suit land through sale mutation No.53676 attested on 13‑6‑1972 Gul Ahmad had sold the same to Gul Raeef vide mutation Nos.19 and 20 attested on 21‑8‑1972. Gul Raeef and Mir Salamat Shah had acquired ownership in the suit 'Khata' through exchange mutation attested on 14‑6‑1972. Both the Courts below had not realised that Gul Ahmad, the vendee cannot possibly transfer the land to Gul Raeef, may be within the prescribed period of limitation and before the institution of the pre‑emption suit, in recognition of his superior right of pre‑emption since at the time of the original sale effected vide mutation No.53676 attested on 13‑6‑1972 in his favour Gul Raeef was not the owner in the suit 'Khata' and that he became owner in the suit 'Khata' for the first time through exchange mutation on 14‑6‑1972. Section 17 (1) of N.‑W.F.P. Pre‑emption Act only recognizes the transfer of the property to a person having a right of pre‑emption equal or superior to that of the plaintiff prior to the institution of the pre‑emption suit that a pre‑emption suit would not lie. A right of pre‑emption arises in respect of the land in case of its sale only and a pre‑emptor is supposed to have a superior right of pre‑emption at the time of sale and to continue with a subsisting right of pre‑emption till obtaining a decree. I shall, as such, upset the findings of the Courts below on the issues of nature of transactions and superior right of pre‑emption and would hold that the two transactions effected vide mutation Nos. 53676 and 53656 and 53657 were in case of the former a sale and in case of the latter an exchange, the former subject to the exercise of right of pre‑emption and the latter immune from the right of pre‑emption and that the plaintiff a co‑sharer possessed a superior right of pre‑emption with respect to sale mutation No.53676 as against the defendants Nos.l and 2 both.

8. Last the learned appellate Court determined the issue of payment of sale price in the sum of Rs.4,000 fixed in good faith or actually paid and further determined the market value of the suit land in the same amount but for the entire area including 4 kanals 9 marlas area of the exchange mutation. On the point there has not been filed a counter revision by the plaintiff‑decree holder. In the evidence D.W.1 has stated that the suit land was purchased by Gul Ahmad defendant No.l for Rs.4,000 and that the price was fixed in good faith and also actually paid. He was not seriously cross‑examined in this respect. I would accordingly determine the market value of the suit land sold per mutation No.53676 for Rs.4,000.

9. In view of the afore-going discussion I would partially accept this revision petition and would modify the decree and judgment of the Court of Additional District Judge by granting a decree to the plaintiff‑respondent with respect to the land sold per mutation No.53676 on payment of Rs.4,000, which shall be deposited within two months if not already paid or deposited, otherwise his suit shall stand dismissed with costs while with respect to the land of exchange mutations Nos.53656 and 53657 the plaintiff‑respondent's suit is dismissed. Parties are left to bear their own costs throughout. S . Q . / 556/P Petition partly accepted.