2005 PLP 197 (YLR)

2. The learned counsel for the petitioner contends that the transaction in dispute, in fact, was of gift, wrongly held as sale by the learned Court. He also contends that on proof of equality of superior right pre-emption, the pre-emptor and vendee shall share the land equally.

3. On the country, the learned counsel for the respondent opposing the same submitted that the transaction in dispute was in reality sale and was camouflaged as gift. He submits that the vendee defendant has not substantiated the reasons for the alleged gift in his favour. As to the argument of the distribution of the property between the pre-emptor an the vendee/ defendant he placed reliance on section 20 of the Punjab Pre-emption Act, 1991, to contend that both pre-emptors and vendee/defendant having equal right in pre emption will divide the property between them per capita. Relied on Feroze Khan and 3 others v. Ahmed Yar (1992 MLD 1570).

4. Heard. Record perused. Ahmad Khan appeared as P.W.1 and stated that the vendor and vendee/defendant had no relationship inter se. The sister of vendor was divorced by the vendee. The vendor has not gifted the land. The transaction was camouflaged in order to defeat the pre emptive rights. In cross-examination, the defendant suggested his distant relations, with the vendor. Ghulam Ali appeared as P.W.2. He deposed that Yaqoob had informed him that the sale has taken place and the transaction has been shown as gift. Yaqoob appeared as P.W.3 and stated that Muhammad Khan, vendor, had told him of the transfer of the suit-land to the plaintiff by way of sale. The defendant himself appeared as D. W .1. He deposed that the land in dispute was gifted to him by Muhammad Khan, who is son of cousin's sister of his father. In cross-examination, he stated that Muhammad Khan had a son and two daughters. His wife is also alive. He has admitted that he had divorced the sister of the vendor. He stated in cross examination, that he does not remember at which place and in which Mauza the mutation in dispute was entered and sanctioned. He further stated that he does not remember the detail of Khasra number from which he has taken the land. He also does not remember that what was the total are of the land. He also expressed ignorance and does not remember as to whether he purchased the entire khasra number or part of it. This portion of statement in cross-examination is produced for ready reference:--

5. Muhammad Khan transferor had a son, two daughters and wife. The petitioner/transferee was not closely related to him. No evidence was brought on record in proof of financial status of Muhammad Khan. Why will he gift the property in favour of a distant relation? What were the reasons apparently, are not coming forth. The defendant in his own statement has almost conceded the nature of transaction. Learned Courts below also found that the transaction in dispute is one of sale. Concurrent view in regard to nature of transaction does not call for interference.

6. The pre-emptors as well as the vendee /defendant are co-sharers in the suit property. Appellate Court granted a decree to the extent of 2/3rd share in favour of the plaintiffs, two in numbers, while sold defendant will retain 1/3rd share.

7. Section 20 of the Punjab Pre emption Act, 1991 mandates that where the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right of pre-emption, the property shall be shared by them equally. Section 20 of N.-W.F.P. Act, 1987 is similarly worded. It came up for consideration before the Honourable Supreme Court of Pakistan in cases of Kala Khan v. Ayub Khan (1993 SCMR 543), and Sar Anjam Khan v. Abdullah Khan (1999 SCMR 2167), wherein it was held that the pre-emptor and vendee/defendant falling in the same class have equal right of pre-emption and the property shall be shared by them equally.

8. In Feroz Khan and 3 others Supra, a learned Single Bench of this Court interpreted section 20 of the Act, by placing reliance on Amir Hussain v. Rahim Baksh and others (ILR 19 All 466), in the following words:-- "Section 20 embodied a rule of Islamic Law, that in case of plurality of persons having equal right of Shuffa, the property shall be distributed per capita among them equally. As the pre-emptors were four in number poised against a sole vendee, they shall be entitled to 4/5th share of the property sold leaving the vendee with 1/5th share in it. Above rule for distribution of the pre-emptive property between equally classed pre-emptors and the vendee found recognition in a celebrated judgment of Allahabad High Court in case of Amir Hussain (plaintiff) v. Rahim Bakhsh and others (defendant) ILR 19 All

466. Rule laid down in the above case firmly held the field in Allahabad High Court as well as Bombay High Court."

9. The words `pre-emptor' and the vendee' used in section 20 are meaningful. They belong to two distinct classes. One class is of pre-emptor while the other is of vendee. One pre-emptor or more than one, irrespective of share in land, will distribute equally. The intention of the Legislature appears to be that pre-emptors shall distribute the land equally amongst them selves as a class. As against this section 20 of the Act provides that two classes of pre emptor and vendee will share equally.

10. In the instant case, sole vendee is confronted by plaintiffs two in numbers. All are co-sharers. Whether the land will be distributable to them per capita with 1/3rd share each or pre-emptor and vendee as distinct class will share in equal shares, 1/2 each. The Honourable Supreme Court has taken the view that, if the pre-emptor and vendee fall in the share class they will share equally.

11. Respectfully following the dictum laid down in the above pronouncement of the Honourable Supreme Court, the decree of the Appellate Court to the extent of 2/3rd share is modified. Resultantly, the respondents/plaintiffs are entitled to decree of share of the suit property on payment of Rs.1,

500. With the above modification, this civil revision is dismissed. Revision dismissed accordingly. H.B.T./M-679/L