1989 PLP 526 (SCMR)

SHAFIUR RAHMAN, J.‑‑These three Petitions raise a common question of law and are being disposed of by this judgment. The three petitioners owned jointly agricultural land and each of them sold his 1/3rd share by three separate registered deeds. In this background the tenants joined in to bring pre‑emption suits in respect of each sale and so there were three such suits. An objection was taken ‑that as the tenants have not separately sued for the specific tenancy out of the land sold, their suit was liable to be dismissed on the ground of 'sinker' they having joined in respect of certain land, persons who were not its tenants. The Additional Deputy Commissioner decreed their claim jointly. On appeal the Additional Commissioner upheld this objection holding as follows:‑‑ "It is obvious that Multan, Fazal Dad, Abdur Rehman and Bostan respondents are tenant on Khasra No.859 and Sharaf Din and Abdul are tenant on Khasra No.844, and Sharaf Din, Abdul, Muhammad Din and Rehmat are tenants on Khasra No.845. The owners have sold their land to the extent of 1/3rd share in each Khasra No. to the vendee against which the respondents have filed three separate pre‑emption suits but in all the suits all the respondents have joined as plaintiffs. This shows that on Khasra No.859 Sharaf Din and Abdul respondents are stranger, on Khasra No.844, Multan, Fazal Dad, Abdur Rehman and Bostan, Muhammad Din and Rehmat Din are strangers. Similarly on Khasra No.845 Multan, Fazal Dad, Abdur Rehman, Bostan are strangers, according to the principle of sinker enunciated u: the above rulings. It is clear that all these three appeals suffer with the principle of sinker i.e. stranger has been joined as plaintiff. The learned counsel for the respondent asked for adjournment which was not allowed at this stage." The Member, Board of Revenue restored the decree of the trial Court observing as follows:‑‑ "The petitioners were tenants under the joint owners who through separate transactions transferred their share in favour of the vendees Muhammad Younus, Wali Dad and Allah Dad. The vendees had, therefore, substituted for the original owners in the joint holdings. The doctrine of sinker, therefore, did not apply to these pre‑emption suits. The judgment‑decrees of the learned Additional Commissioner being based on incorrect reading of law, I would intervene in revision and set them aside with the result that the pre‑emption decrees awarded by the Additional Deputy Commissioner (Revenue) Collector are restored." The High Court in writ jurisdiction declined to interfere with that Order holding as follows:‑ "In my opinion, plea of sinker in the circumstances, was not available to the vendees. As the suit property was sold through separate sale‑deeds, plaintiffs had to bring separate suits. One suit for pre‑emption in the circumstances of the case could have legitimately, been filed by the tenants/pre‑emptors .Where substantial justice has been rendered by the Order of the lower Court, the High Court may refuse to interfere notwithstanding the fact that reasons for the order are not correct and acceptable to it." Ch. Akhtar Ali, Advocate, the learned counsel for the petitioners has contended that no utter stranger has been introduced as a pre‑emptor in the litigation nevertheless as the claim of each tenant was confined to his tenancy, he could be considered as stranger in respect of the claim made by other tenant with regard to the land covered by his tenancy and to that extent one set of pre- empting tenant would be stranger when considered alongwith other set of pre emptors and the principle of 'sinker' will apply. The pre‑emptors in instituting three suits maintained the integrity of the sale and only those tenants pre‑empted who had some claim in the land sold. It was not a case where someone had been joined who had no right to join or no right to claim a relief. As their claim in fact was confined to their own tenancies alone, they could claim relief in the suits though a lesser one than the entire subject‑matter of the suits. The claim of none of them could be dismissed on the ground of being hit by principle of 'sinker'. It would have been in any case, futile to insist on nine suits or more where they could appropriately institute three such suits. We entirely agree that the principle of sinker is not attracted to the case at all and even if it is, its technicality cannot be allowed to defeat substantial justice. Leave to appeal is, therefore, refused. AA./W‑43/S Leave to appeal refused.