P L D 1973 Peshawar 167 (PLP)

(1) Whether the plaintiffs had superior right of pre emption? (2) Whether the suit was within time? (3) Whether the plaintiffs were estopped from instituting the suit? (4) Whether the suit was bad for partial pre‑emption? (5) Whether the sum of Rs. 2,000 was fixed in good faith or (6) Whether the sale was exempt from pre‑emption? (7) Whether the plaintiffs had a cause of action? (8) Whether the suit was barred under section 11, C. P. C.? (9) Whether the suit was bad for misjoinder of parties? (10) What was the market value? (11) Relief.

7. After recording such evidence of the parties as they wished to adduce, the learned Civil Judge who tried the suit by his order dated 22‑2‑1966 held that the plaintiffs had superior right of pre‑emption with respect to Khasra No. 1051, but had equal right with Khalid Mahmood with respect to Khasra No. 3320/1013, that the suit was within time, that the plaintiffs were not estopped, that the suit was not bad for partial pre- emption, that payment of Rs. 2,000 was not proved, that the sale was not exempt from pre‑emption, that the plaintiffs had is cause of action, that the suit was not barred by res judicata, that is was not bad for misjoinder and that the market value was Rs. 88.05 per marls. The plaintiffs were held entitled to the whole of Khasra No. 1051 on payment of Rs. 748.45, while they were held entitled to one marls of the three marlas sold out of Khasra No. 3320/1;013 on payment of Rs. 54.72 and Khalid Mahmood to the remaining two marlas out of Khasra No. 3320/1013 on payment of Rs. 109.44. The suit of the plaintiffs was thus decreed accordingly. For distributing the area sold out of Khasra No. 3'320/1013 between the plaintiffs and Khalid Mahmood sec tion 13 of the Pre‑emption Act was resorted to after it was held that sections 16 and 17 of the Pre‑emption Act had no application.

8. Khalid Mahmood went up in appeal to the Court of the District Judge and the learned Additional District Judge, who heard the appeal by his order dated 15‑7‑1967 held that since Khalid Mahmood had obtained the land by the exercise of his right of pre‑emption before the institution of the present suit, the present suit was, therefore, incompetent. He, therefore, accepted the appeal, set aside the judgment and decree of the learned lower Court in toto and dismissed the suit of the plaintiffs with costs throughout. The curious thing about this judgment of the Additional District Judge is that Khalid Mall‑mood had no superior right with respect to Khasra No. 1051, he had not obtained any decree regarding that Khasra No. and his counsel admits that his client never claimed Khasra No. 1051 even in his appeal, and still the learned Additional District Judge accepting the appeal, dismissed the suit of the plaintiffs as a whole even with respect to Kha,ra No. 1050.

9. Ali Mardan and others, the plaintiffs, have come up in second appeal against the judgment and decree of the learned Additional District Judge. Mr. Abdus Samad Khan, Advocate for the appellants and Mufti Muhammad Idris, Advocate for the respondent Khalid Mahmood heard and the record perused. It was conceded by learned counsel for the respondent that the plaintiffs‑appellants were entitled to a decree so far as the sale of land out of Khasra No. 1051 was concerned and that their suit had wrongly been dismissed by the learned Additional District Judge to that extent. In view of the above this appeal, therefore, must succeed so far as the sale of land out of Khasra No. 1051 was concerned. It may, however, be mentioned here that tire plaintiffs‑appellants bad prayed for possession by pre emption of 6/19th share of this Khasra number but there is no evidence on file to show that 6/19th share of this Khasra number had been sold.

10. The share of Abdur Rahman vendor in Khasra No. 1051 comes to 14/88 of 2 kanals 15 marlas=81 marlas. His share in Khasra No. 3320/1013 comes to 133/836 or 7/44 of 19 marlas=3‑1/44 marlas. Since he had sold 6 marlas in all from both the Khasra numbers and It could not be found out as to how much did he sell from each Khasra number, we have there fore to take it that he sold the 6 marlas from the two Khasra numbers in proportion to his shares in these Khasra numbers. The ratio is roughly 3 : 1 and in this view of the matter he is deemed to have sold 41 marlas out of Khasra No. 10516 an 1 marlas out of Keasra No. 3320/1013. The plaintiffs are thus entitled to a decree for possession of 4 marlas of land out of Khasra No. 1051 by pre‑emption on payment of Re. 4 x 88.05=Rs. 396.22.

11. Now coming to Khasra No. 3320/1013 there Is no dispute between the parties that both the parties were co‑sharers in this Khasra number with the vendor Abdur Rahman, and if the suit of the plaintiffs was competent even in the face of the earlier decree in favour of Khalid Mahmood then the 1 ' marlas of land sold out of this Khasra number, as held above, is to be shared by the parties according to their shares already, held by them in the Khasra number according to section 13 of the Pre- emption Act. The share of Khalid Mahmood in this Khasra number is 572/836 while the share of the plaintiffs is 2/3 of 131/836=262/2508. The remaining 1/3rd belongs to the sister of the plaintiffs, who were not pre‑emptors. Bringing these shares of the parties to the common denominator the position is like thus:-- 1716/2508 : 262/2508. The parties are, therefore, to share these 1 marlas in the ratio of 1716: 262 or 858:

131. The plaintiffs would thus he entitled to a decree for 131/989th share of the 1 marlas out of Khasra No. 3320/ 1013.

12. The main dispute, however, between the parties is regard ing the point as to whether the suit of the plaintiffs lay or not when a decree for pre‑emption had been passed in favour of Khalid Mahmood who had equal right with the plaintiffs‑appellants before tin institution of the suit of the plaintiffs‑appellants. The contention of the, learned counsel for the respondent is that since the purchaser Muhammad Zaman had transferred the land in dispute before the institution of the present suit to Khalid Mahemood who had equal right with tire plaintiff's‑pre‑emptor, the suit of the plaintiffs‑appellants did not lie according to section 17 of the N.‑W. .F. P. Pre‑eruption Act. The contention of the learned counsel for the appellants on the other band is that the land was never transferred by Muhammad Zaman, the original purchaser, to Khalid Mahmood and that getting land on the basis of a pre‑emption decree was not a transfer contemp lated by section 17 of the ad: W. F. P. Pre‑emption Act, and that in the circumstances section 13 of the N.‑W. F. P. Pre- emption Act was applicable.

13. Now the decision of this point rests on the meaning of the word "transferred" used in subsection (1) of section 17 of the N: W. F. P. Pre‑emption Apt, which runs as follows:‑ "No suit for pre‑emption shall lie where the purchaser has, prior to the institution of such suit, transferred the property in dispute to a person, having a right of pre‑emption equal or superior to that of the plaintiff." According to the learned counsel for the respondent getting land on the basis of a pre‑emption decree in a pre‑emption suit amounted to transfer in the name of the pre‑emptor, while accord ing to the learned counsel for the appellants getting land in a pre‑emption decree did not amount to transfer. In his support learned counsel for the appellants referred to an authority of the Allahabad High Court reported in Kundan Lal v. Amar Singh and others (A I R 1927 All. 664). A perusal of this authority shows that it applies on all fours to the facts of the present case. In that case too the defendant who had equal right with the pre‑emptor had obtained the land by a decree in a pre‑emption suit before the institution of the pre‑emption suit against him, but it was held that the getting of land on the basis of a pre‑emption decree in a pre‑emption suit did not amount to transfer under section 20 of the Agra Pre‑emption Act. It may be mentioned here that section 20 of the Agra Pre‑emption Act is similar to section 17(1) of the N: W. F. P. Pre‑emption Act. No authority to the cont rary could be cited by learned counsel for the respondent. Transfer of property is defined in section 5 of the Transfer of Property Act, which runs as follows :‑ "'Transfer of property' means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and, 'to transfer property', is to perform such act." A mere perusal of the above definition shows that the conveyance must be brought about by the act of a person conveying the property and not in any other way. In this view of the matter the decree in a pre‑emption suit cannot be called the act of a person conveying property and the contention of the learned counsel for the appellants, therefore, seems to be well founded. J, therefore, hold that, the land sold was never transferred to Khalid Mahmood and that section 17 of the N: W. F. P. Pre -emption Act had no application. Under these circumstances in view of section 13 of the N.‑W. F. P. Pre‑emption Act the plaintiff's‑appellants would be entitled to a decree for possession of 131/189th share of 1 marlas out of Khasra No. 3320/1013 on payment of Rs. 18 in round figures. The net result is that I accept this appeal, set aside the judgment and decree of the learned Additional District Judge and grant the plaintiffs a decree for possession as follows:‑ (a) 4 marlas out of Khasra No. 1051 on payment of Re. 396.22; and (b) 131/989th share of 1 marlas out of Khasra No. 3320/1013 on payment of Rs.

18. In the peculiar circumstances of the case the parties should bear their own costs throughout. Appeal accepted.