1988 PLP 1018 (CLC)

(2) Is the suit within time? O.P.P. (3) Is the suit not maintainable? O.P.D. (4) Has the plaintiff cause of action to bring the suit? O.P.P. (5) Whether the plaint does not disclose the cause of action, if so, with what effect? O.P. D. (6) Has the plaintiff superior right of pre‑emption? O.P.P. (6‑A) Whether the sale upon which the plaintiff bases his superior right of pre‑emption is itself void and is in contravention of Martial Law Regulation No. 64? O.P. D. (Defendants Nos. 2 to 4). (6‑B) Whether the suit land is evacuee and the Civil Court as such has no jurisdiction to try the suit? O.P.D. (2 to 4). (7) What is the effect of sale of land by defendant No.l in favour of defendants Nos.2 to 4 on the present suit? O.P. Parties. (8) Relief.

3. After the conclusion of the trial, the learned Civil Judge, Narowal, vide his judgment and decree dated 11‑4‑1973 decided all the issues in favour of the pre‑emptor i.e. respondent No.l and decreed his suit on payment of Rs.5,000.

4. An appeal was taken before a learned Additional District Judge. Sialkot, by the petitioners viz. the subsequent vendees. At the time of arguments before the learned Additional District Judge the learned counsel representing the petitioners challanged the findings of the learned trial Court only on two issues i.e. issues Nos. 6‑A and 6‑B.

5. After hearing the learned counsel for the parties the learned appellate Court came to the conclusion that at the time of sale by Ghulam Hussain, etc. in favour of Muhammad Sarwar, the suit land was no more an evacuee property. Ghulam Hussain, etc. had become owners of that land by that time and, therefore, the sale in question could validly be pre‑empted. It was further held that the petitioners could not substantiate their plea that the sale of land by one Mst. Ghafoori in favour of Sardar Muhammad respondent on the basis of which he (Sardar Muhammad) claimed his better right of pre‑emption as being owner in the estate was void inasmuch as Mst. Ghafoori was owner of land less than subsistence holding as envisaged under Martial Law Regulation No.64 and that she had not sold her entire holding in favour of Sardar Muhammad. The learned Additional District Judge came to the conclusion that as per contents of the registered sale‑deed, through which Mst. Ghafoori sold the land in favour of Sardar Muhammad, her entire holding was sold. Consequently, the appeal filed by the petitioners failed and the same was, therefore, dismissed vide judgment and decree dated 18‑10‑1981 passed by the learned Additional District Judge Sialkot.

6. The aforementioned judgments and decrees passed by the learned trial Court as also by the lower appellate Court have been called in question through the present revision.

7. It has been urged that it was proved on records that respondent No.l had not purchased the total holding of Mst. Ghafoori and, therefore, sale in favour of the said respondent by Mst. Ghafoori being void, he could not claim superior right of pre‑emption as being owner in the estate on the basis of said sale. It has also been pleaded by the petitioners that they too are owners in the estate and, therefore, they had equal right of pre‑emption as against respondent No.l and hence his suit could not succeed against them. It has also been contended that the sale of land by Ghulam Hussain etc. in favour of Muhammad Sarwar was not pre‑emptible as by the time the sale took place the vendors had not become owners and the suit land was still an evacuee property.

8. The contentions raised on behalf of the petitioners have been thoroughly considered and minutely analysed. There does not appear to be much subsistence in these contentions.

9. As a matter of fact, the sale by Ghulam Hussain etc. in favour of Muhammad Sarwar took place on 16‑12‑1964 and the same was pre‑empted by Sardar Muhammad on. 15th December, 1965, i.e. within the prescribed period of limitation. Muhammad Sarwar, the original vendee, sold the land in favour of the petitioners herein much later during the pendency of suit of pre‑emption filed by Sardar Muhammad. This sale in favour of the petitioners took place on 19‑1‑1967 i.e. long after the expiry of the period of limitation. The A petitioners thus cannot be said to have purchased the suit land in exercise of their right of pre‑emption from Muhammad Sarwar. The principle of lis pendens is applicable in their case and legally they are bound by the consenting written statement filed by their' predecessor‑in‑interest viz. Muhammad Sarwar, the original vendee. In Mst. Bashiran Bibi v. Sh. Altaf Hussain and others P L D 1982 Lah. 584, with reference to the provisions of section 52 of the Transfer of Property Act, it was held that a petitioner who wanted to be impleaded as defendant could not claim independent right and was bound by what had been done by the time the original defendant abandoned his claim. In Mst. S‑ant Kaur v. Teja Singh and others AIR 1946 Lah. 142, it was held that the doctrine of lis pendens applies to pre‑emption suits. Where during the pendency of a suit for pre‑emption and before the expiry of period of instituting a suit for pre‑emption the vendee transfers the property sought to be B pre‑empted in favour of A in recognition of his right of pre‑emption and in recognition of his right to enforce that right by means of legal action the transfer by the vendee to A cannot be regarded as voluntary so as to attract the rule of lis pendens. But where at the time of transfer to the limitation for instituting a suit for pre‑emption had expired and A had lost the use of the coercive machinery of law for compelling the vendee to surrender the property) in recognition of his right of pre‑emption the transfer in favour of A by the vendee must be regarded as a voluntary transfer of such title as the vendee himself had acquired under the original sale so as to attract the principle of lis pendens. In such a case the transfer has not the effect of substituting the subsequent transferee A in place of the vendee in the original bargain. He cannot be regarded as anything other than a representative‑in‑interest of the original vendee, having no right to defend the suit except on the pleas that were open to such vendee himself and hence cannot plead his own equal or superior right of pre=emption and defeat the plaintiffs right to pre‑empt.

10. It is also noteworthy that in the circumstances of the under consideration matter, the learned trial Court as also the learned lower appellate Court have recorded concurrent findings on questions of fact that the sale in question by Ghulam Hussain etc. in favour of Muhammad Sarwar respondent No.l was pre‑emptible as by the time the sale took place the land involved in the sale was no more an evacuee property. The Courts below have further come to the conclusion that the earlier sale of land by Mst. Ghafoori in favour of Sardar Muhammad was not void and on the basis of that sale he could lawfully claim to have better right of pre‑emption on account of being owner in the estate. These findings of fact cannot legally be called in question through a civil revision under section 115, C.P.C. unless it is held that the Courts below recording such findings, lacked jurisdiction in the matter. In Gulzar Khan v. Mst. Razia Begum and 4 others 1982 SCMR 843, it has been held that the findings recorded by the Courts below were essentially one of the fact and that the Supreme Court was not able to find out any error of jurisdiction and thus it concluded that interference by the High Court in exercise of its revisional jurisdiction under section 115, C . P. C . was not warranted.

11. In the light of the foregoing discussion, it is concluded that there is no merit in the under consideration civil revision, which is accordingly dismissed with costs. ?/N‑96/L Revision dismissed