P L D 1973 Lahore 806 (PLP)

S. M. Masood for Respondents Nos. 1 to 4 and 8. Respondent No. 51 Exparte. Dates of hearing: 26th, 27th, 30th April and 21st June 1973. Two suits were brought by rival pre‑emptors, Mahmood Khan appellant and Muhammad Asif (a minor) respondent No. 6, ‑respectively, against the vendees‑respondents Nos. 1 to 5. In Muhammad Asif's suit, a consent decree was passed on the 14th of January 1963, without impleading Mahmood Khan, whose suit was pending. On objection being raised in Mahmood Khan's suit Muhammad Asif, the rival pre‑emptor, was impleaded as a defendant. The trial Judge decreed Mahmood Khan's suit holding that Muhammad Asif's suit was collusive and Mahmood Khan having a superior right of pre‑emption as a co‑sharer 1n the suit Khata, is entitled to the decree. The lower appellate Court has reversed the finding on the issue of collusion and has dismissed the suit on the ground that Muhammad Asif being a son of one of the vendors and nephew of the other vendor has a preferential right as against Mahmood Khan. 2. In this appeal, learned counsel has argued with vehemence that because of non‑impleading of Mahmood Khan in Muhammad Asif's suit, the consent decree obtained by him, being violative of the provisions of section 28 of the Punjab Pre‑emption Act, is a nullity. It is contended that the entire proceedings in the two suits are bad in law and the suits be remanded to the trial Court with a direction to permit impleading of either rival pre emptor as a defendant in the other suit, as envisaged in section 28 and then decide both the suits afresh. Muhammad Akram Khan v. Mst. 'Kaniz Fatima Bibi and others (P L D 1952 Lab. 489) has been relied on to seek support for the argument. 3. There is no gainsaying the fact that Muhammad Asif's decree having been obtained in disregard of the provisions of section,28 of the Punjab Pre‑emption Act, is not binding on Mahmood Khan, but as has been rightly pointed out by counsel for the respondents, with reference to Ghulam Tayyib v. Shahro Khan and others (P L D 1962 B J 1) such a decree is not a nullity and Mahmood A Khan shall have to prove his superior right as against the vendees and Muhammad Asif, in his own suit, in which Muhammad Asif has been impleaded as a party. The issues framed in Mahmood Khan's suit cover the entire controversy between the rival pre‑emptors and since Muhammad Asif admittedly has a superior right of preemption, Mahmood Khan can only succeed if Muhammad Asif is shown to be colluding with the vendees. As already stated above, the trial Court returned a finding in favour of Mahmood Khan on issue No. 4 pertaining to collusion. This finding has been reversed by the Additional District Judge. Before me a number of factors have been recounted to show that Muhammad Asif's suit was collusive and he is acting for the benefit of the vendees. The first point mentioned is that Muhammad Asif engaged a junior of vendees' counsel to represent him in the suit and that Mahmood Khan had seen counsel of the vendees dictating the plaint in Muhammad Asif's suit to his junior. This statement of Mahmood Khan FQP. W. 3) has not stood the test of cross‑examination. The next point urged is that Ghulam Haider, a distant uncle, acted as guardian ad litem instead of his real mother. The guardian ad litem of a minor may be either a guardian appointed by Court or a person in whose custody he is or a relative who has no interest adverse to the minor. Therefore, appearance of Ghulam Haider as guardian ad litem is not indicative of collusion. Much capital has been attempted to be made out of the alleged defect of partial pre‑emption In Muhammad Asif's suit. I have held above that the decree in that suit is not binding on Mahmood Khan anti his suit is to be decided untrammelled by the said decree. According to counsel, the suit land comprises Khata No. 210/202 consisting of Khasra Nos. 4311/3248, 3246 and 4310/3248/1, measuring 13 kanals 13 marals, and wari chah In Khata No. 202/ 3/799, Khasra No. 3349 measuring 6 marlas. Mahmood Khan claims to have purchased Khasra No. 4310/3248/1 along with others from Jawaya, who is a co‑sharer to the extent of 1/8th in Khata No. 210/202. This fact is mentioned in the Jamabandl Exh. P. 1, a copy of which document is also appended by Muhammad Asif to the plaint in his own suit, although Muhammad Asif bag denied this averment of Mahmood Khan in his written statement. In Khata No. 210/202,1alal and Sardara are owners of 7/8 in equal shares, while 1/8 belongs to the said Jawaya. On Jalal's death, his 7/16 share was inherited by his, son Safdar Husain (49/128) and widow Mst. Sardaran (7/128). The area of 11 kanals 19 marlas shown as transferred in the mutation In question, could be correct, if 7/8 share of 13 kanals 13 marlas has been transferred by Sardara, Safdar Husain and Mst. Sardaran. Since Mst. Sardaran does not appear to have sold her share to the vendees, Sardara and Safdar Husain have been shown (in red Ink in the mutation Exh. P. 3) to have sold 105/128 share (equivalent to 11 kanals 4 marlas) of theirs. If the area of 2 kanals 2 marlas of Khasra No. 4310/3248/1 is excluded from the khata as having already been sold by Jawaya, the 105/128 share of 11 kanals 11 marlas will be 9 kanals 9 marlas. It is pertinent to note that the mutation order (Exh. P. 3) is silent about the field numbers. The name of Mst. Sardaran is mentioned at one stage but the order of attestation omits her name. Still the area transferred is shown as 7/8th share in Khata No. 202‑11 kanals 19 marlas, and 2/27 share in Khata No. 202/3/799, Khasra No. 3349, 6 marlas nil, total measuring 11 kanals 19 marlas. How this figure was arrived at is beyond comprehension. The area of 10 kanals 2 marlas (instead of 9 kanals and 92 marlas am, shown above) was claimed in Muhammad Asif's suit on the two‑fold ground that Mst. Sardaran has not sold her share and even otherwise he is entitled to pre‑empt the sale by Sardara and Safdar Husain only. The amendment of the plaint and decree sought by him afterwards on the 12th of June 1964 for 11 kanals 19 marlas and allowed on the 16th of June 1964 appears to be a misdirection, because Sardara and Safdar Husain could' not sell Mst. Sardaran's share, nor are they shown to have sold more than their own share of 105/128 in the two field numbers, namely, 4311/3248 and 3246. Be that as it may whatever Date been purchased by the vendees was acceptable to him and heave been agreed to accept the defective title, if any. Therefore, It was not a case of partial pre‑emption and Muhammad Asit"s plaint suffered from no such defect. If the subsequent amendment was defective, as suggested, because of omission of Khasra No. 4310/3248/1 or of absence of Muhammad Khan, it is of no avail to Mahmood Khan because the decree is not binding on him and the only persons aggrieved may be the vendees, who confessed judgment. 4. The argument that Muhammad Asif is a minor and the family has sold its entire holding and the suit has not been brought by him, may be attractive at first blush but it is a case of mere suspicion. Similarly, engagement of the same counsel before this Court by the vendees and Muhammad Asif loses its significance when we find that the vendees have already confessed judgment in Muhammad Asif's favour. Even the cumulative effect of all the factors set out above does not go beyond suspicion and suspicion cannot be equated with collusive conduct to defeat the rival pre‑emptor. 5. For the reasons above, the appeal fails and is dismissed there will be no order as to costs. K.B.A. Appeal dismissed.