P L D 1982 Lahore 752 (PLP)

MUHAMMAD ILYAS, J.‑The facts giving rise to this regular second appeal are that the respondent, Ghulam Muhammad, filed a suit against the appellants, Muhammad Yaqoob and others, for possession of 437 kanals and 13 marlas of land through pre‑emption. During the pendency of the suit the parties made an application Order XXIII, rule 3 of the Code of Civil Procedure for "adjustment and compromise of the suit". According to the compromise reflected in that application the suit was to be decreed to the extent of five acres of land on payment of Rs. 70,000 and was to be dismissed in respect of the rest of the land in dispute. The appellants, who were defendants in the suit, also made a joint statement in support of the compromise and prayed that the suit may be decided accordingly. Statement to the same effect was made by learned counsel for the respondent, who was plaintiff in the suit. The Civil Judge, who was seized of the suit, therefore, decreed the suit in terms of the compromise. The judgment and decree of the learned trial Court in ibis behalf have been challenged by the defendants by means of the instant appeal.

2. It was contended by learned counsel for the appellants that the compromise on which the impugned judgment and decree were based was not a lawful compromise within the meaning of rule 3 of Order XXIII of the Code of Civil Procedure and, therefore, the judgment and decree under appeal were not sustainable. Elaborating his argument, it was submitted by the learned counsel that since a suit for partial pre‑emption is barred by law the compromise in question on the basis whereof the respondent's suit was partially decreed was not lawful. He cited Mst. Fazal Bi and 8 others v. Ghulam Hussain and 5 others PLD 1978SC(AJ&K)577, to support his contention.

3. In the case of Me. Fazal Bi and 8 others, rival suits for pre‑emption were filed. One of these suits was brought by Abdul Aziz and the other by Ghulam Hussain and others. The suit of Abdul Aziz was partially decreed on the basis of compromise entered into by the parties to that suit. This had happened during the pendency of the suit of Ghularn Hassain and others who were not impleaded as parties to the suit of Abdul Aziz. According to the consent decree passed in the suit of Abdul Aziz, some of the land in dispute was left with the vendee while the other was awarded to Abdul Aziz. As a result, when the suit of Ghulam Hussain and others was decided subsequently, it was decreed to the extent of the land left with the vendee. The disposal of the suits as aforesaid was taken exception to by Ghulam Hussain (one of the rival pre‑emptors) before the Supreme Court of Azad Jammu & Kashmir which was pleased to issue notice to' Abdul Aziz "to show cause as to, why his suit prima farie being hit by the doctrine of partial pre‑emption and for not impleading Ghulam Hussain and others rival pre‑emptors in his suit as defendants, may not be dismissed". The objection raised before us is, however, not by a rival pre‑emptor 'who was not a party to the suit giving rise to this appeal but by the appellants who were parties to that suit. In fact, it was not the plea of learned counsel for the appellants that in addition to the suit brought against them, there was any suit for pre‑emption in regard to the land in dispute. Admittedly, the appellants had entered into the compromise and had agreed to the adjustment of the suit against them and it was at their request that the suit was decided in terms of the provisions of the Order XXIII, rule 3 of the Code of Civil Procedure. The cited case, therefore; being distinguishable on facts, is of no help to the appellants.

4. The consideration underlying the doctrine of partial pre‑emption is that if a person's right of pre‑emption extends to the whole of the land' involved in a sale he should not be permitted to claim its parcels of his liking by leaving the rest for the vendee. This is a safeguard against the pre emptor's unilateral attempt to have the land of superior quality by spurning the land of inferior quality. The suit giving rise to this appeal did not suffer from the defect of partial pre‑emption inasmuch as it was in regard to the entire land purchased by the appellants. It could, therefore, not be dismissed by the trial Court, suo motu or at the instance of the appellants, on the ground of partial pre‑emption. It was in consequence of an adjustment agreed upon by the appellants that the respondent was awarded a part of the land pre‑empted by him. They are, therefore, estopped from assailing the judgment and decree, founded on that adjustment, by invoking the doctrine of partial pre‑emption, which, to our minds, is not attracted to the cases of adjustment.

5. Resultantly, we find no force in this appeal. It is dismissed in limine. S. Q. Appeal dismissed.