1989 PLP 1040 (CLC)

ABAID ULLAH KHAN, J‑‑This appeal is directed against the judgment and decree of the learned Senior Civil Judge, Sheikhupura. dated the 20th of April, 1980 dismissing the appellant's suit for possession by pre‑emption of 280 kanals and 15 marlas of the land in dispute, situate in the area of village Nokhar, tehsil and district Sheikhupura. Shahbaz Ahmad Khan, brother of the appellant, Mumtaz Ahmad Khan, sold the land in question to the respondents by means of the deed of sale. Exh. D.3, which was executed and registered on the 2nd July, 1978, for an ostensible consideration of Rs.3,10,

246. Claiming himself to be in possession of right of pre‑emption superior to that of the vendee‑respondents on the basis of being an heir of the vendor, co sharer of the land in dispute and owner of the estate wherein the land lay, which qualifications the respondents were said not to have. the appellant instituted suit on the 10th of June, 1979, to pre‑empt the sale. He contended that the sale had actually taken place, for Rs.2,60,000. but in order to evade pre‑emption, Rs.3,10,243 had been entered as price in the sale‑deed and that the last mentioned amount did not represent the market value of the land.

2. The respondents denied the preferential pre‑emptive right of the appellant. They asserted that Rs.3,10,246 had been fixed in good faith and paid as sale consideration of the land in suit and that its market value exceeded this amount. They claimed compensation in respect of improvements of the land which they said they had effected and for a tube well which they alleged they had installed. They held the appellant to be liable to be the expenses which they had incurred on the registration of the sale‑deed. They described the suit to be collusive and Benami and to have been brought for the benefit of Zaheer Khan, who was mother's brother of the appellant's wife. 'they maintained that as the appellant was instrumental in settling the bargain of sale he was estopped by word and deed from bringing the suit. They pleaded that the suit suffered from the defect of partial pre‑emption. They put forth claim for compensatory costs under section 35‑A of the Code of Civil Procedure.

3. On the pleadings of the parties the learned trial Court settled the following issues for determination:‑ (1) Whether the plaintiff is estopped to bring this suit ? (2) Whether the suit is Benami and has been filed for the benefit of Zahoor Khan ? (3) Whether the plaintiff has a superior right of pre‑emption ? (4) Whether the sale price of Rs.3,10,246 was fixed in good faith or paid ? (5) What is the market value of the suit land ? (6) Whether the vendees/defendants have made improvements, if so, to what extent and with what effect ? (7) Whether the vendees/defendants are entitled to recover Rs.20,257 on account of expenses for the execution and registration of the sale‑deed ? (8) Whether the suit land has not been properly described (9) Whether the suit is bad for partial pre‑emption ? (10) Whether the vendees/defendants are entitled to recover special costs under section 35‑A C P.C., if so. to what extent ? (11) Relief. The learned trial Civil Judge faced no difficulty in confirming the superiority of the pre‑emptive right of the appellant because he was brother of the vendor and was co‑owner of the land in dispute entered in khata No.152 whereas the vendees were strangers. He found that Rs.3,10,246 had been paid as the price of the suit land. He did not determine the market value of the land. He was not impressed by the respondents' evidence in respect of improvements which were alleged to have been made by them. Therefore, he did not award them anything on account of improvements. The respondents were no doubt declared entitled to receive expenses incurred on registration of the sale‑deed. He recorded verdict on issues Nos.2, 8. 9 and 10 against the respondents. However, he formed the view that the appellant was present at the time of registration of the deed of agreement to sell the land, Exh.Dl, and the sale‑deed, Exh.D3, and had taken part in the settlement of the transaction and as such was estopped from bringing the suit. Consequently he non‑suited him.

4. In appeal the appellant if stricted his attack only to the finding of the learned Civil Judge on the issue of estoppel. The learned Civil Judge seems to have been more impressed by the evidence of Mr. M.S. Siddiqui, Advocate, D.W.2, who had identified the parties at the time of registration of sale‑deed, Exh. D3 and of Chaudhry R1uhammad Munawwar, Advocate, D.W.3, who had identified the parties at the time of registration of the Agreement to sell the land, Exh_D

1. Mr. M.S, Siddiqui, D.W.2, deposed that at the time of registration of the sale‑deed, Exh.D3, the appellant, Mumtaz Ahmad Khan, the vendor, Shahbaz Ahmad Khan and their father, Niaz Ahmad Khan, were present. Chaudhry Muhammad Munawwar, D.W.2, bore out the presence of the appellant and vendor at the time of registration of agreement of sale of land, Exh. D1. !Here presence of the appellant would hardly work as estoppel against him. The evidence of Mr. M.S. Siddiqui and Chaudhry Muhammad Munawwar cannot prove anything which could operate estoppel against the appellant.

5. We are left with the oral statements of Abdul Salam, one of the vendees‑respondents, D.W.9. And Chaudhry Barkat Ali, marginal witness of the agreement of sale and deed of sale Exh.D

3. D.W.1 that the appellant had brought about the settlement of bargain of sale. There is some contradiction in the statement of Chaudhry Barkat Ali, D.W.1; at one point he stated that the bargain of sale had been settled at the house of the appellant and at another point he said that the bargain of sale had been struck at the house of the vendor's father where the vendor and the appellant were present. It is interesting to note that neither the deed of agreement, Exh.Dl, nor the deed of sale, Exh. D3, bears the signature of the appellant to mark the appellant's participation in the bargain of sale or his presence at the time of execution or registration of these documents. The respondents could have easily obtained his signatures on the said documents. The appellant denied point blank his association with the bargain of sale. Muhammad Niaz Khan, father of the appellant and vendor, P.W.3, excluded the appellant's presence in the settlement of bargain of sale. Mere mention in passing by Chaudhry Barkat Ali,' D.W.1 and Abdul Salam, D.W.9, that the appellant had got the bargain of sale settled, without corroboration by any documentary material, cannot suffice to establish estoppel against the appellant. The facts of the case Sikandar Hayat v. Master Fazal Karim P L D 1971 SC 730, relied upon by the learned counsel for the respondents as also A by th'e learned trial Court, do not coincide with those of the instant case so as help to draw inference that the appellant was estopped to bring the suit. We feel that from the evidence brought on the record by the respondents it is not legitimate to conclude that the appellant was estopped from bringing the suit. The finding of the learned trial Court in this behalf cannot but be reversed.

6. The learned counsel for the respondents contended that notwithstanding setting aside of the learned trial Court's finding on the first issue the appellant's suit, in view of the law laid down by the Supreme Court of Pakistan in Sardar Ali v. Muhammad Ali P L D 1988 SC 287 and further explained in Muhammad Shoaib v. Member (Revenue) P L D 1988 SC 355, Ghulam Qadir v . Nawab Din P 1, D 1988 SC 701, Kareem Bakhsh v. Abdul Rehman 1988 S C M R 1237, Abdul Ghafoor v. Noor Muhammad 1988 S C M R 1555, Inayat Ali v. Muhammad Sultan 1988 S C M R 1561, Fazal Karim v. Allah Ditta 1988 S C M R 1563, Abdul S3ttar v. Mst. Zaitoon 1988 S C M R 1579 and Aiwaz Khan v. Allah Bakhsh 1988 S C M R 1799, was liable to be dismissed. The learned counsel for the appellant contended that the dispute and the rights of the parties were to be decided according to the law which prevailed when the lis first came to the Court and the law laid down by the Supreme Court could not be given a retrospective effect. He submitted that pending actions were to be governed by the existing law and the law laid down by the Supreme Court was to regulate the cases arising in future. He referred to the extracts from Dias' Jurisprudance, 1976 edition, pages 181 .to 183, under the heading of the ratio decidendi, that no word has one proper meaning nor can anyone seek to fix the meaning of words for others for the future, so the interpretation of the ratio remains open ended and flexible and that the ratio is essentially a pointer to the direction which subsequent decisions should take within a broad spectrum of different statements of facts and it depends primarily on the facts held to be material by the deciding Judge, but Judges in later cases can reinterpret the material facts in support of his argument.

7. However weighty the argument of the learned counsel for the appellant may be and whatever merit it may possess this Court is bound to follow the law laid down by the Supreme Court. As no decree in the suit instituted by the appellant was passed before the 31st July, 1986, the suit cannot but fail. Consequently the appeal has to be dismissed. The parties are left to bear their own costs throughout. A. A./M‑1006/L Appeal dismissed.