2001 PLP 1427 (CLC)

Respondents Nos.5 and 6 purchased suit‑land measuring 133 Kanals, 11 Marlas from one Mehdi Khan vide a registered sale‑deed, dated 5‑5‑1977. As per contents of the said sale‑deed, a sum of ks.1,17,000 was paid as sale price. On 30‑10‑1977 respondents Nos.1 to 4 claiming to be the collaterals of said Mehdi Khan vendor filed a suit for possession of the suit land by pre‑emption. According to these pre‑emptors the land had been sold for a sum of Rs.32,

000. On 26‑11‑1977 the appellants claiming to be the wife and children of the said vendor filed a suit. Their case was that the land had been sold for Rs.10,

000. Both the suits were consolidated on 22‑6‑1978 and proceedings were conducted in the suit filed by respondents Nos.1 to

4. Issues were framed. Proceedings were conducted in the case of respondents Nos.1 to 4. 1 may state here that on 19‑12‑1977 Muzaffar Khan vendee appeared in Court and made a statement that the suit filed by the appellants be decreed as against him. The other vendee contested both the suits. Evidence of the parties was recorded. Vide common judgment and decree, dated 13‑12‑1982 the learned trial Court passed a first decree in favour of the appellants to deposit a sum of Rs.13,510 by 19‑12‑1982 and upon their failure to do so a second decree was passed in favour of respondents Nos. 1 to 4 subject to deposit of Rs.32,000 by 23‑12‑1982. Respondents Nos. 1 to 4 filed a first appeal which was heard by a learned Additional District Judge, Gujrat. He proceeded to reverse the said order of the decrees holding that the suit filed by the appellants is collusive vis‑a‑vis the vendees vide judgment and decree, dated 13‑10‑1984.

2. Learned counsel for the appellants argues that the impugned judgment and decree is wholly based on conjectures and surmises and there is no evidence on record to support the same. Learned counsel for respondents Nos. 1 to 4, on the other hand, supports the impugned judgment and decree of the learned Additional District Judge by referring to some circumstances apparent on the record and also to some portions of the evidence on record.

3. I have gone through the trial Court's records. I may state here that only issue contested before the learned Additional District Judge and as also in this R. S. A. before this Court is issue No. which is as follows:‑‑ "

6. Whether the suit of rival pre‑emptors is collusive qua the rival pre -emptors and vendee?" Reference to the rival pre‑emptors is to the appellants in this R.S.A.

4. The allegation of respondents Nos. 1 to 4 is that the appellants have filed the suit for benefit of the vendees in collusion with them. Learned counsel for respondents Nos.1 to 4 relies on the following circumstances and evidence to support the said issued No.6:‑‑‑ (i) The appellants are the wife and children of Mehdi Khan and are residing with him and that except the wife the others are minors. (ii) The suit was filed subsequently to the suit of respondents Nos. 1 to 4. (iii) According to the sale‑deed the land was sold for Rs.1,17,000 yet the suit was decreed on payment of Rs.10,000 and the vendees did not file an appeal. (iv) Muzaffar vendee conceded the suit of the petitioners, and (v) Khizar Hayat vendee stated as D:W.3 that the vendees have got the suit filed by the appellants to harm the cause of respondents Nos. to 4. 4‑A. So far as the said first reason is concerned, to, my mind nothing turns on the same inter se the rival pre‑emptors. The mere fact that the appellants are the children and wife of the vendor would not lead to any adverse inference against them, particularly when respondents Nos.1 to 4 themselves are claiming to be the collaterals of the vendor. Similarly the fact that the appellants are residing with Mehdi Khan, in the absence of any evidence that there is some three poonged conspiracy vis‑a‑vis the vendor the vendees and the pre‑emptors would be of no relevance. The subsequent filing of the suit would hardly give rise to any adverse inference when both the suits were filed within time prescribed by law. Rather in both the suits the pre‑emptors had not opted to wait till the last date of limitation.

5. As to the said concession of Muzaffar Khan vendee on 19‑12‑1977 to my mind the said concession also is of no avail to the appellants as the suit filed by respondents Nos.1 to 4 was already pending and ultimately was consolidated with the present suit. Besides the fact remains that Khizar Hayat did contest the suit filed by the petitioners. I may here state that the said Muzaffar vendee also filed a written statement on 15‑5‑1978 and although it is a conceding statement but he has stated therein that he has received the consideration from the appellants. Statement of Said Begum, appellant as P.W.5 may also be referred to here. In response to cross‑examination by respondents Nos. 1 to 4 she had stated that she had herself brought Muzaffar along and that they had approached him through the Biradari and he had agreed to give the statement subject to payment of his costs and that she had paid him Rs.5,000 according to ‑his demand and he had made the statement in favour of the appellants. In this view of the matter the said concession on the part of Muzaffar can hardly be held to be a proof of the suit being collusive or for the benefit of the vendees.

6. As to the said third reason, the same would have been of some avail had the learned trial Court found that the amount mentioned in the sale‑deed was in fact paid. On the other hand, it is finding of the learned trial' Court with reference to the evidence on record that the amount mentioned in the sale‑deed was not in fact paid. Now this finding was given while the matter was being contested by the two sets of pre‑emptors and one of the vendees whose case was that he had paid a sum of Rs.58,500 for his share of the suit‑, land. The learned Court has also found that there is no evidence as to the market value of the land. It was in this state of evidence that the learned trial Court proceeded to hold that the land had been sold for Rs.10,

000. So far as respondents Nos.1 to 4 are concerned, they were made to pay Rs.32,000 by way of second decree as they had themselves stated that the land was sold for that much amount. It appears that the finding of the learned trial Court are correct because even the sum of Rs.32,000 in which the suit of respondents Nos.1 to 4 was decreed is but a fraction of the price recorded in the sale deed.

7. Coming to the said last reason i.e. the statement made by Khizar Hayat. Learned counsel for the appellants complains that an examination of the original record would show that first the said statement was recorded commencing with a denial "(GHALAT HAI)" but then it was deleted find the words "(DURUST HAI)" were written. I do not find much force in the said submission as I find that the cutting appears to be initialled by the learned Civil Judge. However, I fail to understand as to how the said statement can be treated as evidence of collusion and be held to be binding upon the appellants. I may here again refer to the statement of Said Begum, D. W .5. She has categorically stated that she has not filed the suit on the asking of any one; that she has not filed the suit in conspiracy with her husband and that she is' spending money on the litigation out of her own pocket. She was subjected to lengthy cross‑examination by respondents Nos.1 to 4: She has denied the suggestion that the vendees have got the suit filed or that the suit was filed to cause harm to respondents Nos.1 to

4. One thing is very much that she stated in her statement that the land was sold for Rs.10,000 a word in cross‑examination was put to her by respondents Nos.1 to 4 regarding the said part of her statement. Learned counsel for respondents Nos.1 to 4 then argued with reference to the case of Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403 that suits filed by the children or wife of the vendor are to be presumed to be collusive. However, the latter view of the Supreme Court as expressed in the case of Altaf Hussain v. Abdul Majeed 1991 SCMR 2523 and Saulat Hussain Shah by his Legal Heirs and another v. Amanat Ali and 4 others PLD 1992 SC 228 lays down that there is no such presumption and a son or a close relative of the vendor cannot be denied the right given to him under the Statute only because of the said relationship. I have already dealt with several reasons forwarded by the learned counsel in support of the impugned judgments and decrees. There is no evidence on record to prove that the suit had been filed in collusion, with the vendees. In this view of the matter I am in agreement with the learned counsel for the appellants that the learned Additional District Judge has resorted to conjectures while holding the suit to be collusive.

8. As a result of the above discussion this R.S.A. is allowed. The judgment and decree, dated 13‑10‑1984 of learned Additional District Judge, Gujrat is set aside while that passed by the learned trial Court on 13‑12‑1982 is restored leaving the parties to bear their own costs. Q. M. H. /M. A. K./S‑217/L Appeal allowed.