2006 PLP 242 (MLD)

MAULVI ANWARUL HAQ, J.

This judgment shall decide R.S.A. No.137 of 1987 and the Cross-Objection No.5 of 1987 filed by the contesting respondents in the main appeal.

2. Vide registered sale-deed dated 3-3-1975 the respondent No.1 purchased the suit-land described in para. 1 of the plaint for a consideration of Rs.1,10,

000. On 22-1-1976 Habibullah, the deceased appellant, filed a suit for possession of the said land by pre-emption. He claimed to be a preferential heir of the vendors. The precise contention was that he was the son of Abdul Rashid, nephew of Muhammad Hafeez and Mst. Rashida Bibi and grand son of Mst. Rehmat Bibi (i.e. four vendors). I may note here that according to the plaint, the said plaintiff was a minor and the suit had been filed through a maternal uncle Abdul Sattar as next friend. It was also asserted that the actual sale price is 89,

000. All the four vendors were also impleaded as defendants in the suit. The respondent No.1 in her written statement objected that the suit is collusive and has been filed at the behest of the vendors. It was explained that the plaintiff does not own any property. Neither he has any source of income and is not in a position to pay Rs.1,10,000 and, in Fact, the vendors want to take back the land and the suit has been filed Benami. She also claimed to have effected some improvements. Another objection taken was that the Governor of Punjab was not possessed of authority to issue a notification dated 3-3-1978 in terms if section 8 of the Punjab Pre-emption Act, 1913 and the land being located in Colony area is exempted from pre-emption. I will be referring to the replies filed on merits in the latter part of my judgment. Following issues were framed by the learned trial Court:-- (1a) Whether for the reasons stated in the preliminary Objection No.6 of the written statement of the defendant No.1, the suit-land is not susceptible to the law of pre-emption? OPD (2) Whether the suit has been filed in collusion with the vendors? If so, what is its effect? OPD (3) Whether the suit is benami in nature? If so, to what effect? OPD (4) Whether the suit cannot proceed? OPD (5) Whether the ostensible sale price of Rs.1,10,000 was fixed in good faith or actually paid? OPD (6) In case Issue No.5 is decided in negative then what was the market value of the land in suit? OPPs. (7) Whether plaintiff has got superior right of pre-emption? OPP (8) Whether the defendants have effected improvements on the suit-land? If so to what extent? OPD (9) Relief. Evidence of the parties was recorded. Issue No.1 was decided as a preliminary issue and the deficiency of Court-fee was made up. All the remaining issues were decided in favour of the plaintiff and the suit was decreed subject to deposit of Rs.1,10,000 vide judgment and decree dated 16-7-1985. A first appeal filed by the respondent No.1 was heard by a learned Additional District Judge, Sahiwal, who affirmed the findings on all the issues except Issues Nos.2 and

3. The findings on these issues were reversed and it was held that the suit is Benami and also collusive. Consequently, the first appeal was allowed and the suit filed by the plaintiff was dismissed on 2-7-1987.

3. I may further note here that Habib Ullah plaintiff died on 23-7-1997 during the pendency of this R.S.A. C.M. No.1452-C of 1997 was filed in which it was mentioned that the several persons mentioned in para 2 thereof (including Mst. Nasim Akhtar mother of plaintiff) are the legal heirs. This application came up before the Court on 12-12-1997 and on the same day it was allowed as prayed for. Later, a reply was filed by the respondent No.1 opposing the said application. This C.M. was accordingly ordered to be heard along with the R.S.A

4. In the Cross-Objections, the respondent No.1 has questioned the findings recorded by the learned trial Court on Issues Nos.1-A and 7.

5. Sh. Zia-ud-Din Ahmad Qamar, Advocate, for the appellant contends that the findings recorded by the learned Additional District Judge on Issues Nos.2 and 3 are contrary to the settled legal position in the matter of a pre-emption suit filed by a minor. According to him, none of the factors which impressed the learned Additional District Judge can warrant the finding recorded to the effect that the suit was collusive or Benami. Mirza Manzoor Ahmad, learned counsel for the respondent No.1, contends that in view of the evidence on record, the finding is correct and not open to question in the present appeal. In the matter of the C.M. for impleading the L.Rs. the learned counsel vehemently urges that admittedly Habib Ullah died unmarried and issueless and as such only his father and mother are that L.Rs and the other persons are not entitled to inherit in their presence. He particularly urges that Abdul Rashid the father of Habib Ullah appellant had not been mentioned as L.R. and no attempt has been made to implead him as L.R. neither has he himself opted pursue the matter by putting in appearance in Court. Accordingly to him, only the mother has been impleaded as an appellant. Mr. Zia-ud-Din Ahmad Qamar, Advocate, while unable to deny that appellant had died issueless, points out that Abdul Rashid the father of the appellant is already on record as a respondent and it cannot be said that the suit or the appeal is not properly constituted.

6. Ch. Abdul Razzaq, Advocate, while pressing the Cross-Objection has vehemently urged that notwithstanding the denial of the averments in the plaint as to the relationship asserted between the deceased plaintiff on the one hand and the vendors on the other sufficient evidence has not been produced to prove Issue No.7, the precise contention is that the sole statement of the next friend of the minor is not sufficient to discharge the onus of the issue. He has also tried to press Issue No.1-A but the argument is neither here nor there. He simply read out the preliminary objection No.6 in the amended written statement filed by the respondent No.1, as reproduced by me above. Mr. Zia-ud-Din Ahmad Qamar, Advocate, for the appellant, on the other hand, contends that there is no denial in the written statement. He further contends that whereas the next friend has stated the relationship between the several vendors and the deceased plaintiff in categorical terms. Only a suggestion has been given that the plaintiff was not the son of Abdul Rashid. Similarly, in view of the tenor of the written statement, it cannot at all be said that the respondent No.1 denied the relationship between the plaintiff and the vendors either specifically or otherwise.

7. I have gone through the records of the learned trial Court, with the assistance of the learned counsel for the parties. I intend to take up the matter of superior right of pre-emption first, I have already reproduced the relevant contents of the plaint above. I had noted above that I will be referring to the written statement latter.

8. Now the plaintiff is described in the plaint as Habib Ullah minor son of Abdul Rashid through Abdul Sattar as next friend. In para. 2 of plaint, it has been stated that the plaintiff is a minor and the suit is being filed through Abdul Sattar the maternal uncle as a next friend who has no interest adverse to the minor. Now in reply to this para . of the plaintiff, it has been stated that the plaintiff is in the custody of his father and mother who are his legal guardians whereas Abdul Sattar has neither been appointed as a guardian by any Court nor is he a natural guardian and the suit is not competent . It was further stated that Abdul Sattar was present in the negotiations for the sale and is estopped by his words and conduct from filing the suit. Now it is in para. 5 of the plaint that the plaintiff stated that he is the son of Abdul Rashid vendor, nephew of Muhammad Hafeez, Mst. Rashida Bibi vendors and grand son of Mst. Rehmat Bibi vendor whereas the vendee is a stranger and he has a superior right of pre-emption as against the vendee. I deem it proper to reproduce the reply filed by respondent No.1 to the said para 5 which is as follows:-- To my mind, by no stretch of imagination a denial of the material averments contained in para. 5 of the plaint can be read in the statement reproduced by me above. On the other hand, it is an express admission of the relationship stated between the plaintiff on the one hand and the several vendors on the other as would be evident from the said contents of para. 5 of the written statement. Now this statement further is inconsistent with the preliminary Objection No.3 wherein it has been asserted that the suit is Benami for the benefit of the vendors. I, therefore, find that Issue No.7, in fact, did not arise out of the said pleadings reproduced by me above.

9. Now Abdul Sattar the next friend of the minor appeared as P.W. to state the said relationship. He was cross-examined at length but only a single suggestion was given to the effect that the plaintiff is not the son of Abdul Rashid which was denied. Similarly, Bashir Ahmad the husband and attorney of respondent No.1 while appearing as D.W.7 while giving the detail of the expenses incurred by Abdul Rashid in the matter of payment of 1/5th of the price uttered a sentence that Habib Ullah is not the son of Abdul Rashid which is completely out of the context with the remaining statement given in some detail. It will be seen that notwithstanding the categorical statement contained in the plaint and then in the statement of the next friend, there is no averment as to who is the father of Habib Ullah. Needless to state that the relationship stated with the remaining vendors has not even been questioned during the course of evidence.

10. So far Issue No.1-A is concerned, as stated by me above, a vague statement has been made in the written statement. Copies of the relevant notification have not been produced and otherwise there is no evidence on the record that the suit-land is exempted from the exercise of right of pre-emption. The findings are accordingly confirmed.

11. Now coming to the findings recorded by the learned Additional District Judge on Issues Nos.2 and

3. I have already held that the deceased-plaintiff has the superior right of pre-emption. The learned Additional District Judge upon a reading of the evidence has found that the father of the plaintiff was present at the time of sale and promised not to pre-empt the suit-land; that the copies of revenue records were obtained by father of the plaintiff and according to the learned Additional District Judge, the amount of 1/5th was deposited by his father.

12. In the case of Imam and 7 others v. Saifur Rehman (PLD 1984 SC 415), their Lordships observed that in order to non-suit a pre-emptor on this account the evidence must be convincing that he was a Benamidar and had made available his services for the benefit of others. Merely because he is poor or has disposed of his own property or is a minor or because the litigation was being financed by somebody else did not by itself mean that he was necessarily acting in the interest of another. Thereafter, their Lordships quoted with approval the following observations of Brougham, L.C., at page 422 of the report:-- "The true and the just principle which should govern all such cases is this. No discouragement ought to be thrown in the way of persons bona fide suing as next friend; but no undue facility should be given to mere volunteers, who interfere rather for their own purposes than for the infant's advantage. While they appear to act bona fide, they will be protected, the presumption will rather be in their favour; the proof will rather be thrown upon those who impeach their motives; the loaning will be more for than against them. But no strained presumptions will be made to protect them; no forced constructions will be put on their conduct; no benefit from bare possibilities will be conjured up in their behalf."

13. It was also held by this Court in the case of Lal Din v. Allah Ditta and others (PLD 1967 Lah. 703) that unless in a case. It is held that the plaintiff is only a Benami pre-emptor, his suit cannot fall on the ground that he has been financed by some other person or that he had entered into some agreement to transfer the property subsequently in his favour.

14. A learned Division Bench of this Court in the case of Noor Muhammad and 3 others v. Jahangir Ali and 8 others (PLD 1987 Lah. 473) also held that the mere fact that some person other than the pre-emptor has financed the suit instituted by the pre-emptor would not establish that the suit is Benami and not for the benefit of the pre-emptor himself. I may note here that the plaintiffs in the said cases of Iman and Noor Muhammad and 3 others were minors.

15. The evidence has, therefore, been misread in disregard of the said settled legal position. The findings recorded by the learned Additional District Judge on Issues Nos.2 and 3 are accordingly reversed and those recorded by the learned trial Court are restored.

16. Now coming to the question of the impleadment of L.Rs. In view of the admitted position that Habib Ullah plaintiff died in an accident, issueless and unmarried, his estate would devolve upon his father and mother. Consequently, the other persons mentioned in the application do not at all represent his estate. Mst. Nasim Akhtar the mother of the plaintiff has been added as a L.R. and brought on record as such as an appellant while Abdul Rashid the father of the deceased-plaintiff is already on record as a respondent. Nothing, therefore, turns on the said arguments of Mirza Manzoor Ahmad, Advocate.

17. As a result of above discussion, the R.S.A. is allowed while the cross-objections are dismissed. The judgment and decree dated 2-7-1987 passed by the learned Additional District Judge, Sahiwal, is set aside while the one passed by the learned trial Court on 16-7-1985 is restored. C No orders as to costs.

18. The records of the learned lower Courts be remitted back immediately. M.H./H-89/L?????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.