1991 PLP 1334 (CLC)

Abdullah and 3 others v. Abdul Karim and others P L D 1968 S C 140. rel. (c) Punjab Pre‑emption Act (I or 1913)‑‑‑ ‑‑‑‑ Ss. 4 & 15 ‑‑‑ Civil Procedure Code (V of 1908), S.115 ‑‑‑ Revisional jurisdiction ‑‑‑ Pre‑emptor being an owner in estate had preferential right of pre emption as against defendant vendees, one of whom claiming to be tenant having associated with himself vendees having no right of pre‑emption, would be deemed to have sunk to their position ‑‑‑ Courts below having rightly decreed suit, no interference was called for in the judgments in question, in revisional jurisdiction. K.M. Virk for Petitioners. Nemo for Respondent. Date of hearing: 13th May, 1991. Revision petition, at the instance of vendees‑defendants, in the pre emption suit raises only two points for determination. First related to delayed payment of court‑fee on the plaint, in the pre‑emption suit and second concerned itself with the application of doctrine of sinker. On consideration, both are found to be without substance. Facts are:‑By sale‑deed registered on 13‑1‑1973, Mst. Tobi sold 17 Kanals of land at Mauza Marri Thakaran, Tehsil and District Gujranwala, in favour of Taj Din, Mohammad Aslam, Mohammad Younas a half share, Muhammad Jameel, Mohammad KhaR Muhammad Vakil and Mohammad Sharif, the other half, for a consideration of Rs.8,

160. Allah Ditta pre‑empted the sale. He asserted his superior right of pre‑emption on the grounds of being a co‑sharer in the land sold and owner of the estate. Pre‑emption suit was instituted on 12‑1‑1974. Vendees‑defendants contested the pre‑emption suit. Number of defences were raised. On 5‑9‑1974, the trial Court settled necessary issues. Thereafter, it took evidence of the parties. Upon its careful analysis, the trial Court decreed the pre‑emption suit in favour of pre‑emptor subject to his paying Rs.8,160 as the sale price to the vendees‑defendants, after deducting the amount of zar‑i‑panjum already deposited in Court, by or before 29‑4‑1979. In default, the pre‑emption suit was deemed to have been dismissed. Appeal filed against the decree of the trial Court by the defendants failed in the lower Appellate Court on 19‑6‑1980. On the basis of a judgment in Walayat Khatun's case, a revision petition filed in this Court was admitted to hearing on 17‑11‑1980. In para 9 of the plaint, valuation of the suit for purposes of court‑fee was assessed at fifteen times of the annual net‑profits shown at Rs.68. On 25‑2‑1978, the trial Court directed the plaintiff/pre‑emptor to file statement of annual net profits before 9‑3‑1978. On this date of hearing, the trial Court called upon the plaintiff to pay the deficit court‑fee at fifteen times of the annual net profits shown as.Rs.212.50 before 12‑3‑1978. On the same day, plaintiff placed court‑fee stamps of the required value in the sum of Rs.162 on the file of the trial Court. On the next date of hearing fixed in the suit on 12‑3‑1978, the trial Court recorded in the order‑sheet that the deficit court‑fee had been paid. Thereafter, an application filed under Order VII, rule 11, Civil P.C. for rejecting the plaint on account of non‑payment of the correct amount of court‑fee on the plaint within limitation was dismissed by the trial Court on 11‑3‑1979. It is common ground that prior to 25‑2‑1978, when the court had called upon the plaintiff to file statement of annual net‑profits, there was no order fixing with exactitude the amount of Court‑fee payable on the plaint in the pre‑emption suit and directing the discovered deficiency in court‑fee to be made good before a time fixed in it. Plaint in the pre‑emption suit was presented to the competent Court within the prescribed period of limitation. Therefore, in the act of delayed payment of deficit court‑fee, in pursuance to an order of the Court, no question of limitation was involved and the plaint could not have been rejected or the pre‑emption suit dismissed on the basis of a mere technical objection relating to delayed payment of court‑fee on the plaint. Decision of the Supreme Court in Siddique Khan and 2 others v. Abdul Shakur Khan and another P L D 1984 S C 289 assists the point. Therefore, so far as the contention regarding delay in payment of court‑fee relatable to bar of limitation is concerned, it has no merit in it and is repelled. As for the doctrine of sinker, in my opinion, it was correctly applied lo the facts of the case. Sale sought to be pre‑empted was made through a registered deed. Its contents revealed that it was a joint and indivisible sale. Share in the land purchased by each vendee was distinct and specific but the sale‑deed did not indicate the proposition of the sale price contributed by each vendee. There was no proof of it either. Also, there was no statement in the pleading about it. Therefore, on the test laid down in the case of Abdullah and 3 others versus Abdul Karim and others‑‑P L D 1968 S C 140, the pre‑emptive sale shall be deemed and held joint and indivisible. Tai Din vendee alone was stated to be a tenant on the land in dispute at the time of its sale. Entries in Khasra Girdawari, however, did not lend support to his plea of tenancy rights. Be that as it may, even if Taj Din occupied the land in dispute as a non‑occupancy tenant at the time of its sale and had first right of pre‑emption, since his associate‑vendees were strangers and had no right of pre‑emption, he shall be deemed to have sunk to their position and could not successfully resist or compete with the pre‑emptor who as owner of the estate was possessed of a better right to get the land against all the vendees. Looked at from this angle, the Courts below rightly decreed the pre‑emption suit in favour of plaintiff and there was no ground to interfere with the decrees passed by them. In this view of the matter, civil revision has little merit in it and is, accordingly, dismissed by leaving the parties to bear their own costs in this Court. Records be returned. AA./T‑134/L Revision dismissed.