2002 PLP 1673 (YLR)

(6) Whether the vendee/defendants have effected any improvements over the suit property? If so to what extent? OPD (7) Whether the decree dated 24‑5‑1979 passed in favour of defendant No.1 is collusive and thus ineffective against the rights of the plaintiffs? OPP (8) Relief.

4. The learned trial Court came to the conclusion that plaintiffs Umer Din etc. and Muhammad Saleem had equal right of pre emption and returned the finding of issue No.1 against the plaintiffs/respondents. As regards the decree dated 24‑5‑1979 it was held that the suit tiled by appellant Muhammad Saleem was earlier in time and correctly concluded in a consent decree dated 24‑5‑1979. It was further found that Umer Din etc. were not able to prove through their evidence that the said decree was a result of collusion.

5. As a result the suit filed by respondents Nos.1 to 3 was dismissed vide judgment and decree, dated 9‑3‑1985.

6. Respondents Nos.1 to 3 preferred an appeal. The learned appellate Court reversed the finding of trial Court upon Issue No.7 and came to the conclusion that the consent decree dated 24‑5‑1979 would not be binding on the rival pre‑emptors i.e respondents Nos.1 to

3. Holding thus, the appeal was accepted vide judgment and decree dated 29‑5‑1985 and the case was remanded to the trial Court to decide the case afresh in view of the observation of the Appellate Court that both the pre‑emptors had equal right of pre‑emption.

7. Mr. Muhammad Jaffar Hashmi, Advocate, appeared support of the appeal, and contended that the time when the appellant had filed suit for pre‑emption, no suit of respondents Nos. 1 to 3 was pending. There was no question of impleading any other prospective pre‑emptor as a party in anticipation. Upon the filing of the suit by the appellant the vendee respondent No.4 concede the claim of the appellant whereby the consent decree was passed in his favour. He further contended that after the passing of the decree in favour of the appellant, no further suit for pre‑emption was maintainable and the suit filed by respondents Nos.1 to 3 was rightly dismissed vide judgment and decree dated 9‑3‑1985.

8. According to a learned counsel for the appellant the impugned order of remand was based upon misconstruction of law. There is no justification for upsetting the finding of the trial Court upon Issue No.7.

9. On the of hand, Chaudhary Abdus Sattar, Advocate a on behalf of the contesting respond is relied upon section 28‑A of the Punjab Pre‑emption Act, 1913 and submitted that the consent decree dated 24‑5‑1979 was illegal as the civil Court could not have passed off said decree until the period of limitation for the enforcement of the right of pre‑emption of the respondents had not expired. He placed reliance upon the case of Muhammad Akram Khan v. Mst. Kaniz Fatima Bibi and others (PLD 1952 Lahore 489) to contend that where two pre‑emptors instituted suits one after the other without each impleading his rival pre‑emptors as party in case, the consent decree passed in favour of one such pre‑emptor was of no avail as against the other pre-emptor. He further relied upon Ghulam Tayyib v. Shahro Khan and others (PLD 1962 BJ 1) to contend that where one pre‑emptor does not implead the rival pre‑emptor in his suit, the decision in favour of such pre‑emptor shall not be binding upon the other rival pre‑emptor. Further reliance was placed on the case of Jaffaran Bibi v. Saleh Muhammad and others (1979 CLC 889) for the same proposition. The learned counsel for the respondents also referred to the case of Ghulam Muhammad and another v. Bagga and another (PLD 1962 Lahore 693) to contend that under section 28‑A of the Pre‑emption Act, the Court shall not decide the claim of a pre emptor until the period of limitation for the enforcement of such right of pre‑emption has expired and the suits for pre‑emption (if any) instituted with respect to the land or property during the period have been finally decided. Lastly he cited the case of Fateh Muhammad and another v. Fateh Muhammad (AIR 1948 Lahore 71) to submit that when two sets of pre‑emptors have a equal right of pre‑emption then according to section 17 the right of one pre‑emptor should not be destroyed as against the others. In other words in such a case both the rival pre‑emptors shall be equally entitled.

10. Arguments have been heard. Record perused.

11. There is no denying the fact that the appellant had filed his suit earlier in point of time which was decreed in his favour albeit through consent, much before the suit was filed, by the respondents on 2‑12‑1979. Obviously, at the time of the suit or the decree in favour of the appellant, respondents Nos.1 to 3 were nowhere in picture. Section 28 of the Pre‑emption Act shall be in‑applicable for the simple reason that at the time of passing of the decree in favour of the appellant on 24‑5‑1979, the suit of respondents Nos.1 to 3 was not pending. Section 28 of the Punjab Pre‑emption Act, 1913 is as under:‑‑ Section 28. "Concurrent hearing of suits.‑‑‑When more suits, than one arising out of the same sale or foreclosure are pending' the plaintiff in each suit shall be joined as defendant in each of the other suits, and in deciding the suits the Court shall in each decree state the order in which each claimant is entitled to exercise his right."

12. Obviously, there was no occasion for concurrent hearing of the suit of the appellant with the suit of respondents Nos. 1 to 3 as the latter's suit was not pending at the time of the suit filed by the appellant or at the time of the consent decree. The learned counsel for the respondent has also not correctly construed the provision of section 28‑A of the Punjab Pre‑emption Act, 1913. For reference section 28‑A is re‑produced as under:‑‑ "28‑A. Postponement of decision of pre emption suits in certain cases.‑‑‑(1) If in any suit for pre‑emption and person bases a claim or plea on a right of pre‑emption derived from the ownership of agricultural land or other immovable property is liable to be defeated by the enforcement of a right of pre‑emption with respect to it, the Court shall not decide the claim or plea until the period of limitation for the enforcement of such right of pre‑emption has expired and the suits for pre‑emption (if any) instituted with respect to the land or property during the period have been finally decided. (2) If the ownership of agricultural land or other immovable property is lost by the enforcement of a right of pre emption the Court shall disallow the claim or plea based upon the right of pre‑emption derived therefrom."

13. The right of pre‑emption which was exercised by the appellant was an independent right which was not dependent upon any other consideration. Section 28‑A is only applicable in the peculiar circumstances which are mentioned therein. Section 28 A has no applicability to the circumstances of the present case. The title of the appellant on the basis of which he had filed his suit for pre‑emption did not depend upon any contingency.

14. In view of the matter, the precedent cases cited by the learned counsel for the respondents have no bearing on the instant case.

15. Resultantly, it is found that the impugned judgment and decree dates 29‑5‑1985 passed by the Appellate Court is bereft of legal justification and is not sustainable. This F.A.O. is allowed and the judgment and decree dated 29‑5‑1985 is set aside. Parties to bear their own costs. T.A.F./M‑1271/L Appeal allowed.