P L D 1996 Lahore 459 (PLP)

The disputed property comprising an area of 119 Kanals 14 Marlas of land situated in Mauza Wan Syedan, Tehsil Jampur, District Rajanpur fully described in the plaint was initially owned by one Mst. Razia Bibi who evidenced through Mutation No.41 dated 29‑12‑1991 made sale of the same in favour of Kamal. Abdul Ghafoor and Rasool Bakhsh respondents‑defendants. Claiming to be the Khata Sharik, Banna Sharik, Khala Sharik and on the ground of contiguity; Mian Wahid Bukhsh and Allah Bukhsh petitioners/plaintiffs alongwith one Ghulam Haider instituted their suit on 12‑2‑1991 to pre‑empt the aforesaid sale. According to them the aforesaid status was not enjoyed by the defendants/vendees who were the strangers. They maintained that the sale price of Rs.2,10,000 was got entered in the mutation of sale to scare away the preemptors and that the amount of Rs.90,000 was fixed and paid thereof which was also the market value of the suit land. They maintained that they made the demands in terms of section 13 of the Punjab Pre‑emption Act, 1991.

2. The suit was filed by the three plaintiffs/pre‑emptors for whole of tile property jointly but Wahid Bukhsh petitioner/pre‑emptor sought for 1/2 share while Allah Bukhsh pre‑emptor petitioner alongwith Ghulam Haider pre‑emptor claimed 1/4 share each in the remaining suit property. The suit was resisted by the respondents‑defendants who submitted their written statement wherein they denied the superior pre‑emptive right of the pre‑emptors and maintained that the sale price in the sum of Rs.2, 10,000 was fixed and paid to the vendor‑which was market value of the suit land.

3. On 16‑5‑1995 Ghulam Haider plaintiff got his statement recorded to get his suit dismissed as withdrawn to the extent of his share mentioned in the title of the parties i.e. 1/4 share in the suit property. Thereafter the respondents vendees took up the plea that the suit could not proceed under section 1.0 of the Punjab Pre‑emption Act, 1991 which was liable to be dismissed. The trial Court held that due to the withdrawal of the suit by Ghulam Haider one of the plaintiffs/pre‑emptors, the suit could not proceed as in the title of the parties the share to be acquired by him was specifically mentioned as 1/4 in the suit property and the suit became that of partial pre‑emption to the extent of the remaining pre‑emptors who at present are the petitioners. Consequently the suit was dismissed. The appeal preferred by both the petitioners/pre‑emptors met with the same fate. Hence this revision petition. 4. 1 have heard the preliminary arguments addressed by the learned counsel for the petitioners/pre‑emptors who mainly canvassed before me that in the body of the plaint the shares to be acquired by each of the pre‑emptors were not mentioned and if the same have been recited in the title of the suit that has no legal force so as to pass the order for the dismissal of the suit for possession by pre‑emption. I express my inability to agree with him. In this regard it would be convenient to reproduce section 10 of the Punjab Pre‑emption Act, 1991 as under for the sake of convenience: "

10. Withdrawal of claim. ‑‑Where there are more than one pre‑emptors having sued jointly or severally and any of them withdraws his claim before the decision of the Court, the remaining pre‑emptors shall be entitled to the whole property: Provided that the claim of the remaining pre‑emptors was originally made for the whole property. "

5. First of all I express that in the names of the parties incorporated in the plaint the specific shares claimed by the three pre‑emptors have been mentioned. The share of Mian Wahid Bukhsh pre‑emptor/petitioner is mentioned as 1/2 and that of Allah Bukhsh Pre‑emptor No.2/petitioner No.2 and Ghulani Haider pre‑emptor (who got dismissed his suit as withdrawn). is mentioned as the remaining 1/2 i.e. to the extent of 1/4 about each of them. It means that in terms of proviso to section 10 of the Punjab Pre‑emption Act, 1991 the claim of Mian Wahid Bukhsh and Allah Bukhsh petitioners/pre‑emptors was originally not made for the whole property. The fact that the said aspect about the shares of the pre‑emptors was not narrated in the body of the plaint is not enough to make me agree with the learned counsel for the petitioners that the withdrawal of the suit by Ghulam Haider pre‑emptor to the extent of his 1/4 share is not fatal to the suit. Each of the pre‑emptors has specifically mentioned his share in the title of the plaint and each of them is bound by the same without taking‑any exception thereto on any flimsy ground and excuse. This being the position due to the eclipse of Ghulam Haider pre‑emptor from the list of pre‑emptors/plaintiffs, the proviso to section 10 of the Punjab Pre‑emption Act, 1991 shall play the legal role. The remaining pre‑emptors i.e Mian Wahid Bukhsh and Allah Bukhsh pre emptors/petitioners did not claim initially whole of the property for possession by pre‑emption. Due to the attraction of the mandatory provisions of section 10 of the Punjab Pre‑emption Act, 1991, the petitioners/pre‑emptors have rightly been non‑suited by both the lower Courts. No irregularity has been committed by the lower Courts and the judgments and decrees under revision are held to be unexceptional. 6 For what has been said above, I dismiss this revision petition in limine A.A./A‑27/L Revision dismissed