P L D 1967 Lahore 703 (PLP)

Ramsukh Das v. Fazal‑ud‑Din and others 19 P R 1898 ; Sheru v. Jawahir Singh 58 P R 1912 ; Mahmud Bux v. Hassan Bakhsh and others 7 P R 1912 ; Ashaq All Khan v. Shaffi Ali Khan and others A I R 1927 Lah. 872 (2) and Gul Muhammad v. Mst. Iqbal Jan A I R 1942 Pesh. 94 rel. Sh. Abdul Majid for Appellant. Mian Faqir Muhammad for Respondents. Date of hearing : 14th March 1966. Lal Din appellant as the collateral of respondents Nos. 5 and 6 instituted a suit to pre‑empt the sale of the land in dispute made by them in favour of respondents Nos. I to

3. Inter alia the objection raised was that the suit was collusive as the plaintiff was merely a figure‑head and had filed the suit for the benefit of Chiragh Din and abdul Ghafoor. A number of issues were framed. All of them were decided in favour of the plaintiff except that it was held that the sale price had been fixed in good faith at Rs. 2,000.00 and paid by the vendees. The suit, however, was dismissed on the ground that it was collusive and had been filed for the benefit of Chiragh Din and Abdul Ghafoor. In appeal filed by the appellant the only point raised was that the suit was not collusive and was not liable to be dismissed on this ground. The learned Senior Civil Judge with enhanced appellate powers affirmed the decision of the trial Court and dismissed the appeal. The appellant has now come up in second appeal.

2. A preliminary objection was raised that the appeal stands concluded by a finding of fact. Learned counsel for the appellant however, contended that the proper legal effect of a proved fact is essentially a question of law and whether a certain legal infer ence should be drawn from proved facts is essentially a question of law. In Wali Muhammad v. Muhammad Bakhsh and others (A I R 1930 P C 91) the Judicial Committee held:‑ "The proper legal effect of a proved fact is essentially a question of law, but the question whether a fact has been proved when evidence for and against has been properly admitted is necessarily a pure question of fact." The finding of the first appellate Court is chat the plaintiff han entered into an agreement with Chiragh Din and Abdul Ghafoor to transfer the land in dispute to them in case a decree for pre‑emption was passed and that the pre‑emption money was to be paid by them. In giving this finding, he relied on the copy Exh. D. 3 from the register of the petition‑writer which contained the material terms about this agreement. The agreement was proved by secondary evidence because the original had not been produced by the appellant. According to the terms incorporated in Exh. D. 3, the appellant had agreed to sell the land to Chiragh Din and Abdul Ghafoor in consideration of Rs. 2,000.00, and towards the part payment of the same he was paid Rs. 250.00 as earnest money. The pre‑emption money was to be deposited in the Court by these persons. There was a default clause according to which if the appellant failed to execute the sale deed, he was liable to pay Rs. 1,000.00 as damages and also to refund the earnest money. The Senior Civil Judge has held that the appellant did execute this agreement. This is a finding of fact and, therefore, cannot be disturbed in second appeal, but as to what is the legal effect of such an arrangement between the parties to this transaction will indeed be a question of law. Obviously, Chiragh Din and Abdul Ghafoor cannot, if the suit is decreed, become the owners of the property. On the failure of the plaintiff appellant to honour the agreement, the remedy of Chiragh Din etc.,. will be to enforce this agreement against the appellant through the Court of law and in that case also it may be difficult for them to obtain a decree for specific performance .of the contract because such a decree cannot be granted in a case where the plaintiff can be adequately com pensated in damages. In the present case the damages are specified in the agreement itself. By the decree, therefore, the plaintiff‑appellant is to become the absolute owner and Chiragh Din and others on the basis of the decree passed in favour of the appellant cannot claim any right in presenti in the suit land. That being so the suit was in fact for all intents and purposes by, the plaintiff‑appellant for his own benefit. It was not benami for the respondent.

4. On behalf of the respondent it was contended that the right of pre‑emption is a personal right and if a pre‑emptor institutes a suit with the intention that if he succeeds, he will transfer the property to someone else and not to keep the property for his own use, the suit must fail. The right of pre- emption is the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosures of the right to redeem such property. It exists with respects to land or village immove able property in a particular person or persons before the sale of such property takes place and becomes an actuality at the completion of the bargain. If a sale takes place in disregard of the right of pre‑emption created by the Act, i.e., without an offer having been made to the pre‑emptor, it infringes his statutory right and thereby gives rise to the remedial right of the pre- emptor for the purpose of giving effect to and safe‑guarding such a right. The right of pre‑emption is personal right of his in a sense that this is created in him by the provisions of sections 1 and 16, and accrues on account of the personal relationship which he may have with the vendor or it may appertain to him as a co -sharer in the property or a proprietor in that Estate. It is also personal in the sense that it is an interest in pre‑emptive property which is protected solely against determinate individuals but it is not personal, in the sense that it is an attribute of the status of the pre‑emptor. A pre‑emption decree being a judicial recognition of the right of pre‑emption which is a personal and non‑transfer able right is not capable of transfer and it is not open to a pre‑emptor to transfer the pre‑emption decree so as to enable the transferee to execute the pre‑emption decree and to secure possession. On the other hand it is a heritable right. There is great difference between the position of a transferee and an heir. A transfer and the acquisition of rights by the transferee depend upon the volition of the vendor, while the right of succession of an heir does not depend upon the willingness or unwillingness of the last holder to whom he succeeds. This was the view taken also in Lashkari Mal v. Ishar Singh and another (94 P R 1902) and Faqir Muhammad Khan and others v. Pirdad Khan (A I R 1924 Lah. 615). In this view of the matter, if the suit has in fact been for the benefit of Ghiragh Din etc. and the plaintiff was only a fictitious person, the suit had to be dismissed because the right of pre emption can be exercised only by a person if he satisfies the conditions in section

15. In that case the real plaintiff would have been Chiragh Din etc., and Lal Din would be only a benami plaintiff. The suit of the plaintiff, therefore, could fail only if It was established that he was benami pre‑emptor and the real owners of the property after the decree would be Chiragh Din etc. In Briji Narh v. Jita and others (139 P R 1894), it was observed " . . . . if the plaintiff is not seeking the benefit of the suit for himself but for another, I think his suit must fail as a result of the nature of pre- emptive right which is personal privilege exercisable only by the pre‑emptor for his own benefit". The learned counsel for the respondent also relied on this case. The trial Judge also based his judgment on this case. In dealing with the nature of the arrangement between the plaintiff‑appellant and Chiragh Din etc., I have already held that the suit is for the benefit of the plaintiff himself and the decree which is to be passed is also to be in his favour. He is acting in his own right and for his own benefit. Chiragh Din etc., cannot claim any right or interest in the property by virtue of the arrangement referred to above. The plaintiff‑appellant could, by all means, resile from the agreement and in that case the remedy of Chiragh Din and others was only by way of damages and not by the declaration that they were the owners of the property. In this view of the matter unless in a case it is held that the plaintiff is only a benami pre‑emptor, his suit cannot fail on the ground that he has been financed by some other person or that he bad entered into some agreement to transfer the property subsequently in his favour. In Ramsukh Das v. Fazal‑ud‑Din and others (19 P R 1898), it was held, " that when it is proved that a plaintiff in a pre‑emption suit is acting benami that is, that another person will, on the plea that he is the real purchaser, be entitled to take from plaintiff whatever may be decreed to him, the Court should refuse the nominal plaintiff a decree. But this is not an authority for holding that a plaintiff may not enter into any agreement with others as to what he will do with the land if he gets it, and thus raise funds for the maintenance of his suit. In such a case the plaintiff is entitled to his decree, and if after obtaining it he proceeds to transfer the land, a fresh cause of action will arise to other pre‑emptors. It would obviously be most inconvenient and improper to try suit for pre‑emption, not on the true issues of the case itself, but on side issues raised by pleas of the defendant as to agreements alleged to have been entered into by the plaintiff as to the future disposal of the property" The view taken in this judgment was followed in Sheru v. Jaivahir Singh (58 P R 1912) where the facts were that Sheru's suit was brought after Jawahir Singh had filed his suit; that the money deposited in Court under section 19 of the Pre‑emption Act was advanced by the vendees; that the money which was paid into Court in compliance with the decree passed in favour of Sheru by the District Judge had been advanced on a mortgage of the land in suit by the father and nephew of the vendees; that the mortgage was for a fixed period of ten years and the conditions of the mortgage were such as to make redemption difficult after the expiry of the period fixed by the deed; and it was held that the facts were insufficient to prove that the suit was brought by a benami pre‑emptor. It is thus to be noted that the point to be seen in such cases is not that the plaintiff‑pre‑emptor has raised the funds from other sources and has also agreed to give such persons subsequently the benefit of the land but whether he only acts as a benami for those persons. In Mahmud Bux v. Hassan Bakhsh and others (7 P R 1912) it was held, "A man who has a right to pre‑empt has merely to produce the money just as any other purchaser; he can no more be asked what are you going to do with the land, or where did you raise the money, than any purchaser in a shop could be asked such questions by the shop keeper. The pre‑emptor has nothing to do but to prove his right to take over the bargain and when he has proved this right all that he has left to do is to produce the money within the time fixed by the Court. If in any such case the pre‑emptor is buying the property for an outsider, and if after securing the property, he transfers it to the latter, it may be open to another pre‑emptor to challenge the second transfer and to claim pre‑emption in respect thereof. This right is, in our opinion a sufficient safeguard against benami transactions of the kind". The same question was considered in Ashaq Ali Khan v. Shaf Ali Khan and others (A I R 1927 Lab. 872(2)) and it was held " . . . it is necessary before a pre‑emption suit can be defeated on such grounds to establish by the strictest evidence that the object of the plaintiff was really to secure the land for the vendee and a desire to annoy and defeat a rival pre‑emptor is not sufficient". Thus the plaintiff may have had a motive to sell the property to some body else but if he was the real pre‑emptor his suit could not be defeated. The intention or a motive as held in Gul Muhammad v. Mst. Iqbal Jan (A I R 1942 Pesh. 94) is immaterial. The learned counsel for the respondent, however, relied on Keshri Kumar Singh v. Ram Swaroop Singh and others (A I R 1942 Oudh 19) where by not following the view taken in Muhammad Bakhsh v. Hassan Bakhsh and other and Sheru Jawahir Singh it was held, "The object of the law of pre‑emption is to make it possible to exclude strangers and to keep the property in the family or community, and suits which are not brought with this object and which will not have this effect should clearly be discouraged. Therefore, a suit not brought with the bona fide object of excluding stranger but to benefit a stranger is not maintainable". In this case no reference was made to the fact that the right of pre‑emption is one belonging to an individual who possesses certain statutory qualifications and if a sale takes place in disregard of the inherent rights of the pre‑emption, i. e., without an offer having been made to the pre‑emptor, it infringes his inherent right and thereby gives rise to the remedial right of the pre‑emptor for the purpose of giving effect to and safeguarding the inherent right. A person having such right can pursue the property sold by instituting a suit for pre‑emption and thereby protect and vindicate his right of having an offer made to him before sale. The pre‑emptor can be defeated only if it is established that he has no right of pre‑emption. It may be by showing that he is not able to claim any interest in the property under section 15 or 16 of the Pre‑emption Act and he can also be defeated by showing that although he has Instituted the suit he is only an ostensible plaintiff but the real person is somebody else. If it is established that the plaintiff is a benami pre‑emptor then in that case since he is unable to claim any interest in the property by virtue of the pre‑emption decree, he, of course, will not be deemed to be the pre‑emptor. His suit, therefore, will be dismissed not on the ground that he might have; entered into an arrangement with some body to create an interest in his favour by a subsequent transaction but by the fact that to that suit itself he was not the real pre‑emptor but some body else. The view taken in this decision, therefore, does not lays down a good law to be followed. In this view of the matter, the appellant has established his superior right. He is entitled to the decree for pre‑emption. The decrees of the Courts below are set aside and the plaintiff's suit is decreed subject to the plaintiff depositing the sum of Rs. 2,000.00 by or before the 1st July 1966. There shall be no order as to costs. K. M. A. Appeal accepted.