1989SCMR86 (PLP)

USMAN ALI SHAH, J.‑‑This petition for leave to appeal has arisen from the judgment and order of Lahore High Court, Rawalpindi, dated 19‑1‑1985, in R.S.A. No. 78 of 1981, whereby appeal of the petitioner before the Additional District Judge Jhelum, dated 13‑5‑1981, reversing the judgment dated 31‑8‑1978 of Civil Judge, was dismissed by the impugned judgment. Brief facts of‑the case are that Khadim Hussain owned some land in village Chakora, Tehsil and District Jhelum. He executed an agreement to sell the suit land with late Ghulam Ahmad (now represented by the petitioners herein) On 21‑2‑1964 Khadim Hussain sold 12 Kanals 12 Marlas out of this land to Abdul Aziz respondent herein. On 27‑2‑1964 late Ghulam Ahmad brought a suit for specific performance. Muhammad Yousaf respondent herein, a minor also sued for pre‑emption through his next friend. The two suits proceeded independent)of each other. Now as regards the suit of Muhammad Yousaf pre‑emptor, it was decreed in his favour on 12‑10‑1965. Abdul Aziz vendee‑respondent filed appeal before the District Judge but it was dismissed on 16‑3‑1966. Thereafter Muhammad Yousaf pre‑emptor gifted the suit property in favour of Mst. Aasia Begum respondent herein on 2‑9‑1970. As concerns the suit of late Ghulam Ahmad for specific performance, it was also decreed in his favour on 14‑11‑1965 i.e. 25 days after the pre emption suit of Muhammad Yousaf pre‑emptor/respondent which was decreed on 12‑10‑1965. Against this decree Khadim Hussain filed appeal to the. District Court and a learned Additional District Judge who heard the appeal by order dated 3‑1‑1967, modified the decree passed by the trial Court and granted a money decree for Rs. 9,1100 in favour of the petitioners i.e. heirs of late Ghulam Ahmad. The petitioners challenged this decree in the High Court in appeal bearing No.

222. In the High Court, the matter was compromised between the parties in the following terms:‑‑ "14 Kanals 12 Marlas in survey numbers 165, 166, 211, 256,/113, 255, 163 were awarded to Niamat etc. the legal representatives of Ghulam Ahmad." The learned Division Bench passed order accordingly on 2‑10‑1970. This gave vent to a new round of litigation. Mst. Aasia Begum respondent herein brought a suit No. 348/74 on 6‑10‑1973 for a declaration that she is the valid owner of the suit land by means of gift executed in her favour by Muhammad Yousaf and that the compromise decree in the High Court was collusive and for an injunction. The trial Court dismissed her suit on 3‑10‑1978 on the ground that the pre‑emption decree in favour of Muhammad Yousaf was hit by the doctrine of lis pendens. On appeal before him by Mst. Aasia Begum however, the learned District Judge while accepting the appeal reversed the judgment of the learned trial Judge and decreed the suit in her favour on the ground that Mst. Aasia Begum not having been impleaded as defendant in the previous proceeding brought by Ghulam Ahmad, was not bound by the decree and that no decree had been passed in favour of Ghulam Ahmad on the date if sale in favour of Abdul Aziz and pre‑emption was merely a substitution, vide order of the District Judge dated 13‑5‑1981. Against this judgment the petitioner went in second appeal before the High Court but the same was dismissed on 19‑1‑1985. Hence this petition for leave. We have heard the learned counsel for the petitioners at some length. It is a matter of record that Muhammad Yousaf was minor throughout the pre emption proceedings which were brought by his next friend. When he finally succeeded in his pre‑emption suit, he gifted the suit land in favour of Mst. Aasu, Begum. Thus the question would be whether the next friend of Muhammad Yousaf had acted in pre‑emption proceedings for the. benefit of Muhammad Yousaf. This question has not been considered by the Courts below. Apart from this Khadim Hussain did not honour the sale agreement executed with Ghulam Ahmad and sold a part of the suit land to Abdul Aziz Ghulam Ahmad was therefore, obliged to bring suit for specific performance which finally ended in compromise in the High Court. It was at this stage that Mst. Aasia Begum got up and challenged the compromise decree through the present civil suit. Thus the question will be whether at such stage she could seek declaration when she was herself not a pre‑emptor but the suit land was gifted to her by the pre‑emptor Muhammad Yousaf who was minor and whose next friend's conduct is open to objection as how he acted for the benefit of minor by donating the suit land to Mst. Aasia Begum. We consider that the questions involved in this case are of public importance. Leave to appeal is therefore, granted. Security is Rs.5,000 parties would be at liberty to file additional documents, if any. M.I./N‑107/S Leave granted.