P L D 1959 (W (PLP)

Date of hearing: 30th March 1959. This is a second appeal against the judgment of the District Judge, Derajat dated the 10th December 1955, by which ‑he varied the judgment of the Sub‑Judge, Dera Ismail Khan dated the 21st September 1955.

2. An area of 1370 kanals, 9 marlas comprised in five Khasras Nos. 3906/331, 3851/198, 212, 4396/213 and 3860/214, was in the ownership of Muhammad Akhtar and several others who held it in different shares. Out of them fourteen co‑sharers, Muhammad Akhtar and thirteen others, sold their shares in the property, which comprised an area of 803 kanals and 18 marlas, to K. B. Shah Alam Khan and his daughter Mst. Mehraj Bibi for a sum of Rs. 2,813‑10‑0 by a registered sale‑deed dated the 1st November 1952. The sale fell under threat of pre‑emption from Khan Zahuruddin Khan, and both vendees transferred, by two transactions, to Muhammad Umar Khan the entire property purchased by them. Mst. Mehraj Bibi sold her share by a registered‑deed dated 23‑9‑19 53 and K. B. Shah Alam Khan by a mutation which was attested on 19‑10‑1953. This transfer in favour of Muhammad Umar was said to have been made in recognition of his right of pre‑emption.

3. Zahuruddin Khan, in spite of this re‑transfer in favour of Muhammad Umar pre‑empted the sale by a suit instituted on 27‑10‑1953, on the ground of contiguity with the land in suit and participation of amenities. He impleaded Muhammad Umar Khan as defendant and challenged the transfer in hi, favour as fictitious, meaning thereby that the land was still in the ownership of the two previous vendees and he was only a benamidar for them. He also contended that even if resale to Muhammad Umar be found to be genuine, he, by his conduct manifested in negotiating the first sale in favour of the original vendees, had forfeited his right of pre emption and re‑transfer could not take effect in his favour in asser tion of his right.

4. The trial proceeded on many issues but only three points became the subject‑matter of serious dispute in the course of this litigation in the two Courts below and in second appeal here. They were as follows :‑ (1) Transfer in favour of Muhammad Umar Khan was fictitious. (2) Muhammad Umar Khan had forfeited his right of pre emption. (3) The pre‑emptor Zahuruddin Khan had no right of pre emption on the ground of contiguity in respect of Khasra Nos. 3851/198, 212, 4396/213 and 3860/214.

5. The trial Judge found that sale in favour of Muhammad Umar Khan was fictitious. He also held that plaintiff pre‑emptor had a right of pre‑emption in an area of 654 kanals 7 marlas in respect of Khasra Nos. 3851/198, 212, 4396/213 and 3860/214, but no such right in respect of Khasra No. 3906/313. He, therefore, passed a decree in favour of the plaintiff for the possession of 654 kanals 7 marlas on payment of Rs. 2,

291. An area of 149 kanals 11 marlas, in Khasra No. 3905/313, was left in the hands of the defendants.

6. On appeal the District Judge came to a different conclu sion. He was of the view that in the face of the rule of law enunciated in an unreported case of this Court, "Qalandar Khan v. Hafiz Qazi Pir Muhammad". (Civil Revision No. 128 of 1954), the pre‑emptor could not assert his right of pre‑emption in respect of the four fields bearing Khasra Nos. 3851/198, 212, 4396/213 and 3860/214. Only two fields out of these four namely Khasra Nos. 3860/214 and 4396/213 were contiguous to his land comprised in Khasra Nos. 215 and 216, and none of the other two. As there was no contiguity between the pre‑emptor's land and the other two fields, the latter remained in the ownership of the vendees. If the vendees became owner of these two fields by reason of that position they also became owners of land contiguous to field Nos. 3860/214 and 4396/213 and came to possess, in respect of these two fields, right of pre‑emption equal to the right of the pre‑emptor. In view of this situation the pre‑emptor stood on a footing of equality with the vendees in respect of the area conti guous to his land and his claim was not on any preferential footing. He, therefore, dismissed the pre‑emptor's claim in respect of all the four fields, Khara Nos. 3860/214, 4396/213, 212 and 3851/198. With respect to Muhammad Umar Khan he held that resale in his favour was fictitious. With regard to Khasra No. 3906/331 he found that the pre‑emptor owned land contiguous to it and the vendees had no land adjoining that, and he passed a decree in pre‑emptor's favour, in respect of this field. A decree for an area of 149 kanals on payment of Rs. 522‑10‑0 was, therefore, passed in pre‑emptor's favour, on appeal.

7. In this Court as well the case was argued on the points mentioned in the preceding part of this judgment. I am of the view that the sale in favour of Muhammad Umar Khan was not fictitious, if by fictitious sale it was meant that title in the land did not passed him and the ownership still stood vested in the vendees. The two vendees, Khan Bahadur Shah Alam Khan and his daughter sold the land to Muhammad Umar Khan for valuable consideration and received the sale price. Title has clearly passed to him and the sale cannot be said to be sham or false. Muhammad Umar Khan no doubt acted as their agent for the original sale and entered into negotiations with the vendors on their behalf, but by reason of that alone subsequent transaction in his favour cannot become fictitious. That transaction will be judged by its own merits and if it bears all the requisites of a valid sale it will be pronounced to be a sale. Nothing has been brought out in evidence on the basis of which it could be said that the transaction stands divested of the attributes of a sale. It appears that when Muhammad Umar Khan and the two previous vendees found that the land cannot be retained by the vendees in the face of a threat of pre‑emption suit from Zahuruddin Khan, it was transferred to Muhammad Umar Khan in the hope that by this device it may remain in Muhammad Umar Khan's hands and may not pass to the pre‑emptor.

8. But I am also of the view that Muhammad Umar Khan had forfeited his right of pre‑emption by his conduct in obtaining this land for the two vendees. He entered into negotiations with the vendors for the purchase of this land for the original vendees. He. went to the scribe and got the sale‑deed drafted by him. He then presented it for registration to the Sub‑Registrar and paid its price to the vendors on behalf of the vendees, at the Sub‑Registrar's table. By a conduct of this character a pre‑emptor forfeits his right of pre‑emption under section 21 of the N.W. F. P. Pre‑emption Act, 1950. He did not at any stage of those negotiations make it clear to the vendees, or to other pre‑emptors, that he was assisting the vendees in purchasing this land and notwithstanding that he reserved to himself the right of pre‑empting the sale. Even if he had done that he would have been debarred from pre‑empting it under section 21 of the aforesaid Act, which says in clear terms that "a person shall be deemed to have forfeited his right of pre emption if he is found to have committed any positive act in the completion of the sale." Muhammad Umar has undoubtedly committed more than one positive act in the completion of the sale.

9. If Muhammad Umar Khan is held to have forfeited his right of pre‑emptier in respect of this land by negotiating sale in favour of the original vendees he will be considered to have for feited his right absolutely and for ever. Section 21 of the N.W. F. P. Pre-emption Act speaks of forfeiture which destroys the right for ever. If under the old Act conditional waiver had no place in the law of pre‑emption, (A I R 1925 Lah. pp. 359 and 442 and A I R 1927 Lah. p. 501) forfeiture of right under section 21 of the new Act should have no place either.

10. Having found forfeiture of pre‑emptive right against Muhammad Umar Khan, re‑transfer in his favour in recognition, of his right of pre‑emption cannot defeat another pre‑emptor's right of pre‑emption, if it is otherwise enforceable. I find that Zahuruddin Khan has a right of pre‑emption in respect of Khasra No. 3906/331, because his land comprised in Khasra Nos. 4059/331 and 6060/331, is contiguous to Khasra No. 3906/331. He is entitled to a decree for that field only on payment of proportionate price which has correctly been calculated at Rs. 522‑10‑0.

11. But he cannot for the reasons stated by the learned District Judge enforce his right of pre‑emption in respect of other four Khasras Nos. 3851/198, 212, 4396/213 and 3860/214. His land is no doubt contiguous to Khasra Nos. 3860/214 and 4396/213, but the other two fields, Khasra Nos. 3851/198 and 212, which the vendee has acquired, are also contiguous to those two fields and the vendee too has right of pre‑emption, equal with Zahuruddin Khan pre‑emptor, in respect of them. The pre‑emptor is on a footing; of equality with the vendee and has no claim to preference over him. He cannot, therefore lay claim to those two fields as well. There is support for this view in P L D 1956 Pesh. 1 and P L D 1957 Pesh. 36 and also in A I R 1946 Lah. 345.

12. An attempt was made by the learned counsel for the pre‑emptor to show that the Khasra Nos. 3860/214, 4396/213, 212, and 3851/198 are recorded in one khata, which bears No. 408 and vendors are owners of 2/3rd share in that khata and they have sold their 2/3rd share in the joint khata and for that reason, on the ana logy of P L D 1959 S C (Pak.) 9, all the four khasra numbers should be deemed to be one field or one block or one unit of property, and the matter is not within the rule of law enunciated in A I R 1946 Lah. 345 and P L D 1956 Pesh. 1 and 1957 Pesh.

36. P L D 1959 S C (Pak.) 9 on which the learned counsel relies, says that until partition is effected, each co‑sharer has a right in every part and parcel of the joint property. It does not prevent parts of the joint property from being dealt with as separate parts. According to the view enunciated in P L D 1959 S C (Pak.) 9, the vendee became co‑sharer in each of the four fields comprised in that khata along with others co‑sharers, but all the four fields did not become one field for the' purposes of pre‑emption.

13. The lower Appellate Court came to the correct conclu sion in holding the pre‑emptor entitled to Khasra No. 3906/331 only though in respect of one matter his ground for conclusion was different. His decision is confirmed. This appeal is dismissed. Parties will bear their own costs. K. B. A. Appeal dismissed.