P L D 1968 Lahore 929 (PLP)

K. E. CHAUHAN, J.‑-One Hakim Ali on the 10th of August 1956, sold 96 Kanals and 17 Marlas of land situated in revenue estate of Mari Khokhran Tehsil and District Gujrat along with the share in shamilat, share in well and one house described in the sale‑deed of the said date registered on the 11th of August 1956, for Rs. 3,500.00. The vendees were four persons, namely, Ahmad Khan, (2) Mian Khan, (3) Rehmat Khan and (4) Muhammad Hussain. Three persons, namely, Muhammad Sadiq, Yatim Ali sons of Fazal Illahi and Muhammad Ramzan son of Karam Illahi (hereinafter called the old plaintiffs) filed a suit on the 1st of October 1956, in which they averred that the aforementioned sale was against custom, without consideration and necessity and not binding on their reversionary rights after the death of the vendor. In the plaint, a specific position was taken up that though the sale‑deed recited a house as also having been sold, but, in fact, the said house never belonged to the vendor and nor was he in its occupation. After averring this fact, it was pleaded that the said house was not being included in the plaint. In the alternative, it was pleaded that the plaintiffs had a superior right of pre‑emption with regard to the sale hereinbefore mentioned (except the house which, as pointed out earlier, was specifically excluded from the plaint). Conse quently, a decree was prayed in the first instance for a declaration that the sale of the land (excluding the house) would not affect the reversionary rights of the plaintiff after the death of the vendor and in the alternative a decree for possession of only the land (excluding the house) was claimed on the basis of a superior right of pre‑emption. The said vendees resisted that suit. On the pleadings of the parties as many as nine issues were framed on the 21st of February 1957, and the case was adjourned for evidence of the then plaintiffs to the 9th of April 1957. The said issues read as follows:‑-- Before the date of the hearing of the suit, the then vendee sold away the house mentioned above as also the agricultural land together with all rights connected with or appurtenant thereto in favour of the then plaintiffs. The sale‑deed is Exh. D. 5, which was registered on the 25th of February 1957. The sale price was fixed at Rs. 3,600.00. On the 24th of February 1958, Muhammad Khan and Fazal Hussain (hereinafter called the present plaintiffs) filed a suit for pre‑empting the new sale which had been made by the previous vendees in favour of the previous plaintiffs. The defence of the defendants was that they had purchased the property in question in exercise of their pre‑emptive right with regard to the first transaction and that it did not constitute a fresh sale so as to give rise to a right of pre‑emption in favour of the present plaintiffs. The learned trial Court held that the sale made to the present defendants (that is the old plaintiffs) was an indepen dent transaction and was not in recognition of their right of pre‑emption and as such was pre‑emptible. With this finding, the learned trial Court granted to the present plaintiffs the decree prayed for on condition of payment of Rs. 3,100.00. The defendants filed an appeal which was, however, accepted by the learned District Judge, Gujrat, on the 24th of January 1959. The learned District Judge was of the view that the sale in favour of the defendants (the old plaintiffs) was in recognition of their right of pre‑emption and was not a fresh sale. With this finding, the learned District Judge dismissed the plaintiffs' suit. The plaintiffs have come up in second appeal to this Court.

2. Before proceeding to discuss the facts and the peculiar features of this case, it is necessary to bear in mind as to what is the law which is relevant for giving decisions in cases of the present kind. It is to be remembered that the right of pre‑emption arises as laid down in section 4 of the Punjab Pre‑emption Act (herein after called the Act), and so far as relevant for the purposes of the present case, only in respect of sales. Whatever the concept of sale may be, section 3 (5) of the Act says that sale shall not include, "a sale in execution of a decree for money or of an order of a Civil, Criminal or Revenue Court or a Revenue Officer". The first point to be seen, therefore, is as to whether sale made by the previous defendants in favour of the present defendants (i. e. the previous plaintiffs) was a sale, "in execution of a decree for money". It was held in Piare Lal v. Ganeshi Lal and others (46 P R 1909), Mithan Lal v. Chuni Lal (50 P L R 126) that these words are equivalent to, "in compliance with", or "in obedience to" and "in accordance with", a Civil Court decree. Applying this test to the transaction in hand, it will transpire that it did not come into existence in compliance with or in obedience to or in accordance with any Civil Court decree or order. Rather in the previous case, the suit of the then plaintiffs was dismissed and no question arises in considering any private transaction of the parties to be in accordance with any Civil Court decree or order. The present transaction was, therefore, not hit by the mischief of section 3 (5) and the said provision of law would not be a bar towards its pre‑emption. Again, the decree of Civil Court contemplated in section 3 (5) is a money‑decree. Surely, in the present case, there was no money decree.

3. If section 3 (5) of the Act is no bar to the pre‑emptibility of the transaction in hand, we have to examine whether there is any other bar. The learned District Judge was of the view that since the sale in question was made in favour of the present defendants (that is previous plaintiffs) in recognition of their right of pre‑emption, therefore, it cannot be pre‑empted. No authority was quoted by the learned District Judge in support of this proposition and I had, therefore, to examine it in some detail. The real principle is that a vendee can always secure another pre‑emptor and transfer the sale to him. When this is done, the re‑sale does not give rise to a fresh cause of action nor does it constitute a fresh sale. It really substitutes the pre‑emptor for the vendee. In such cases, it is just a continuation of the old sale e and any person who has a right to pre‑empt the first sale, can follow the property in the hands of the second vendee provided he files his suit to pre‑empt the first sale within limitation But before such a re‑sale can be held to bar the suit of a new pre‑emptor, it must fulfill the following requirements :‑ (a) the transfer by the vendee must be a real and genuine one and not merely a sham transaction. It must be a bona fide transaction. See Bhupa and Bisharat Ali, etc. v. Kori Mal and Karam Chand and others 30 P R 1893 (N P); Fazal Din v. Lal Singh and others (1913) P L R 282 and Dharam Singh v. Kirpal Singh and others A I R 1923 Lah. 31 (2) at page 33, Column, 2 para. (1) ; (b) the transfer must be in exercise of the right of pre emption. See Munshi Ram v. Maghar Mal 67 I C 304; (c) the transfer must conform to the law of pre‑emption, i.e. the transfer must take place within the period of limitation; See Karam Ali v. Sultan and others 30 P R 1911 ; Kamta Prasad and others v. Ram Jag and others I L R 36 All. 60 ; Dharam Singh v. Kirpal Singh and others A I R 1923 Lah. 31 (2) at page 35 ; Jan Muhammad v. Nasir Khan and others A I R 1925 Lah. 614 (2) ; Jas Raj Juniwal v. Gokal Chand Jaini A I R 1935 Lah. 808 and Mst. Sant Kaur v. Teja Singh plaintiff and others A I R 1946 Lah. 142 and the transfer must be of the whole transaction. All these principles are applicable where the new pre‑emptor pre‑empts the first sale and takes up the position that he is simply following the property in the hands of the subsequent vendee. In that context, the manner in which the first vendee transfers property to the new transferee is immaterial, because the subsequent transferee's rights remain subject to the right of pre‑emption as against his transferor, i.e. the first vendee. See Munshi Ram v. Maghar Mal and others (67 I C 304). In such cases, ample cases‑law has flown laying down various principles from the point of view of Ante litem sales and Pendente lite sales. In all these transactions, since the pre‑emptor's right starts from the parent sale, be, in fact, pre‑empts the same, but situation may differ where the title of the first vendee is accepted and it is the sale by him‑and not the original parent sale‑which is pre‑empted, i.e. where the re‑sale is not continuation of the previous original parent transaction but an independent transaction by itself. In that eventuality whether the first vendee transferred the property on to a third person within the period of limitation from the first sale or afterwards, is imma terial if the second sale is challenged independently within its own limitation. This view finds support from Kidar Nath v. Devi Sahai and another (A I R 1923 Lah. 259(2)) where A, one of several pre emptors, bought a property from the vendee and subsequently re‑sold it‑to him and thereafter another pre‑emptor B sued the vendee for pre‑emption. It was held by Abdul Rauf, J., that‑ on A's purchase from the vendee, in enforcement of his right of pre‑emption, the original sale in favour of the vendee ceased to exist and B bad no cause of action thereafter to sue for pre emption of the original transaction. Observations to the similar effect are available in Mst. Sant Kaur v. Teja Singh Plaintiff and others (A I R 1946 Lah, 142). The following passage from the judgment of Achhru Ram, J., is worth‑quoting :‑‑ "However, where the subsequent transferee has lost the means of making use of the coercive machinery of the law to compel the vendee to surrender the original bargain to him, a re‑transfer of the property in former's favour cannot be looked upon as anything more than a voluntary transfer in the former's favour of such title as he had himself acquired under the original sale. Such transfer has not the effect of substituting the subsequent transferee in place of the vendee in the original bargain."

4. After having explained the position of the law on the subject, I now advert to the facts and the circumstances of the present case. The first thing to be noticed in this behalf is the previous plaint (Exh. D 2), which as per translation made by the Translation Branch of this Court reads as follows:

"The land with the following detail entered in the Jamabandi for the year 1953‑54, attached herewith, situated in the area of Mari Khokhran, Tehsil Gujrat, owned by the defendant No. 1, was entered in the revenue record." Land measuring 96 Kanals 17 Marlas with the following detail :‑-- " 93 Kanals 10 Marlas, being 1/4 share of the land measuring 374 Kanals, entered at Khewat No. 147, Khatauni Nos. 937 to 956, Khewat No. 147/1, Khatauni No. 957 comprising of Khasra Nos. 1959/742, 946, 982, 1080, 1102, 1103, 1237, 1244, 1339, 1374, 1382, 1389, 1390, 248, 249, 597, 1248, 602, 1794, 1995, 1741, 1756, 1768, 1875, 1893, 1960/743 min, 738 min, 481, 488 min, 489 min, 719 min, 1444, 1545, 1503 min, 1747 min, 429, 1947/426, 242 min, 243 min, 244, 882, 882 min, 1948/426, 625, 1954/740, 1957/740‑743, 2085/1, 2086/1, 73, 77, 78, 79, 1960/743 min, 243 min, 244 min, 1949/426,1950/426, 719 min, 736, 429 min, 448 min, 1955/740, 1956/740, 1302, 1304, 1444 min, 1447 min, 1503 min, 1538 min, 1545 min, 1619: 489, 241, 242 min, 738, 481, 1241, 738 min, 1697, 738, 553 and 949 ; Land measuring 2 Kanals 9 Marlas being 1/8 share of the land measuring 19 Kanals 4 Marlas, entered at Khewat No. 148, Khatauni Nos. 959 to 966, comprising of Khasra Nos. 710 min, 503 min, 710 min 710 min, 503 min, 710 min, 503 min, 722, 723, 880 and 1529: The land measuring 18 Marlas being 1/8 share of the land measuring 7 Kanals 3 Marlas, entered at Khewat No. 150, Khatauni Nos. 968 to 970, comprising of Khasra Nos. 318/3 min, 318/3 min and 318/3 min along with 1/12th share in the well entered at Khewat 151 Khatauni No. 971 comprising of Khasra No. 7090. (2) The defendant No. 1 sold the aforesaid land along with the share of Village Shamilat, internal and external sides and share in the turn of well known as Imam Bakhshwala along with the entire rights relating thereto, in favour of defendants Nos. 2 to 5; got executed the sale‑deed on the 10th August 1956, and got it attested, before the Sub‑Registrar on the 11th August 1956. In the aforesaid sale‑deed, he fictitiously and against the facts, got written to have sold one house, bounded in the North by a street, in the South, by house of Bashir, in the West, by houses of Hayat and others and in the East, by a street in the locality of Mari Khokhran, notwithstanding that the aforesaid house neither belongs to the defendant No. 1, nor he was in possession of it previously nor now, nor the defendant No. 1 has handed over its possession to the defendants Nos. 2 to 5, for which reason, the said house is not being included in the suit. The sale was fictitiously made in consideration of Rs. 3,500.00, but in fact, no money was paid. Copy of the sale‑deed is attached. (3) The defendant No. 1 is very old and is not in his senses. Defendants Nos. 2 to 5 are his maternal‑cousins. He is under their control and they have this sale‑deed executed by persuading him. (4) The said sale is illegal, void and as compared with the reversionary rights of the plaintiffs, is ineffective up to the 5th generation because the sale was made without consideration and genuine necessity and the aforesaid land of the defendant No. 1 is ancestral qua plaintiffs. Moreover the parties are governed by the Zamindara custom in the matters of alienation, under which, the defendant No. 1 inherited the said land from his father. The necessity of the sale mentioned in the aforesaid sale‑deed, is merely fictitious and false, because the land, the necessity for the redemption of mortgage whereof, has been advanced, is itself included in the aforesaid sale. Secondly, when the house does not belong to the defendant No. 1 what is the question of its construction ? It is surprising to know that such huge expenses be incurred on the aforesaid house and it (house) be also included in the sale. The purchase of bullocks is also merely fictitious. When the defendant No. 1 resides in Meowal and does not do cultivation, the purchase of bullocks. is merely a deceit while the defendant No. 1 has no wife and no house and he resides with the defendants Nos. 2 to 5, the incident of illness is fictitious. The defendant No. 1 does not owe any debt. (5) If, for any reason, the declaratory decree is not issued, then in the alternative, the right of pre‑emption of the plaintiffs is superior as compared with that of the defendants Nos. 2 to 5, because the plaintiffs are the heirs of the defendant No.

1. Moreover, they are co‑sharers in the Khatas of the land in dispute alongwith defendant No.

1. Therefore, the plaintiffs are entitled to get possession of the land from the defendants Nos. 2 to 5, through pre‑emption on the market price. (6) The defendants were asked at any rate to admit the reversionary rights of the plaintiffs and to cancel the sale of the aforesaid land, but after evading, they have refused to do so, a week ago, due to which, the cause of action has accrued. (7) The cause of the suit accrued on the 10th August 1956, the date of sale, within the limits of Gujrat District, where the aforesaid land is situate. Therefore, the Civil Court of this District has jurisdiction to hear (this suit). (8) value of the suit for pre‑emption is Rs. 173‑2‑0 at the rate of 10 times of the land revenue for the purposes of court‑fee, while it is Rs. 20 for the declaratory suit, therefore, the additional court‑fee of Rs. 20 has been paid. The value for the purposes of jurisdiction is Rs. 519‑6‑0 at the rate 30 times of the land revenue. (9) Therefore, the plaintiffs pray that a declaratory decree be issued in favour of the plaintiffs against the defendants Nos. 1 to 5 to the effect that the sale of the land detailed in Paragraph No. 1 of the petition of plaint, made by the defendant No. 1, in favour of defendants Nos. 2 to 5 on the 10th August 1956, is illegal and void and being without con sideration and genuine necessity, will be in effective on the reversionary rights of the plaintiffs after the death of the defendant No. 1 (?) . In the alternative, the decree for possession through,‑pre emption on payment of the market price of the land mentioned in Paragraph No. 1 of the petition of plaint, alongwith the entire rights sold mentioned in Paragragh No. 2 of the petition of plaint, be issued in favour of the plaintiffs against the defendants. The costs of both the Courts be awarded to the plaintiffs from the defendants."

5. A perusal of this plaint will show that the then plaintiffs had neither claimed any declaration nor any right of pre emption with regard to the house which was mentioned in the old sale‑deed (Exh. D.7). In the new sale‑deed, which the present defendants obtained from the cold vendees, they, however, got the house also included. This gives a clue to the nature of the deal and shows that the present sale with regard to the house could not be in recognition of any right of pre‑emption; because this house was expressly excluded from the old plaint and the right of pre‑emption with regard to it was waived which would adversely affect the right of pre‑emption with regard to the rest of the property also. Another circumstance to be taken note of is that the rights asserted in the previous plaint were two, namely, (a) a declaration under custom that the sale would not affect the reversionary rights of the then plaintiffs after the death of the vendor‑which meant waiver of the right of pre‑emption altogether and allowing the sale to operate till the death of the vendor and (b) in the alternative pre‑emption with regard to a part of the property. The surrender, therefore, which was made by the then vendees in favour of the then plaintiffs, was in settlement of the aforesaid two rights and not solely of the right of pre‑emption. In its nature, therefore, it was new transaction and not merely a continuation of the old sale. The learned District Judge in Para. 9 of his judgment wrote:‑-- "Further, the transaction amounted to a settlement of disputed rights. The suit was dropped as a consequence thereof." Earlier, in Para. 7, the learned District Judge wrote:‑ "It should not have been forgotton that the plaintiffs' initial prayer in that case was for a declaration under custom that the sale would not affect their reversionary rights." In spite of giving this finding the learned District Judge in Para. 8 of his judgment surprisingly wrote:‑ "This acquisition took place within limitation and was obviously in recognition of the superior rights of pre‑emption possessed by the transferees." The finding that the transaction amounted to a settlement of all the earlier disputed rights was destructive of the finding that the sale was solely in recognition of one right, namely, the right of pre‑emption.

6. The other point to be noticed is that the sale price of the new transaction was Rs. 3,600.00 while the price in the old deal was only Rs. 3,500.00. Nobody in this case has explained the reason for this disparity and in the absence of any positive evidence on this point, we are in a realm of conjectures and cannot hold that in spite of this (a) difference in the property claimed in the earlier plaint and the new sale deed, (b) difference in price and (c) difference between the rights asserted in the old plaint and the one which is being put up now, the transaction was solely in recognition of any superior right of pre‑emption. The possibility cannot be excluded that the old vendees parted with this property because they apprehended that if a declaration was granted that the sale was without consideration and necessity then they will have to leave this property at any cost in future and they thought that if that evil day could not be avoided then why not get a ready cash for the property and save all botheration. It is again to be remembered that in earlier suit primary right asserted was the declaratory right and pre‑emption claim was relegated to a subsidiary position and it is just possible that stage to invoke that right may not have arisen at all. In this context, it cannot safely be held that the transfer to the defendants was solely in recognition of their any right of pre‑emption. May be, it was in recognition of their future right of inheritance to this property.

7. The upshot of the above discussion is that the judgment and decree of the learned District Judge cannot be maintained and the same are hereby set aside. The judgment and decree of the Court below are restored. The appellant will get their costs throughout. K. B. A. Appeal accepted.