1987 PLP 1131 (SCMR)

(4) Whether the plaintiff is estopped by his conduct from bringing this suit? 0 . D . (5) Is the suit barred by limitation? O.D. (6) Relief." The trial Court decided the two material issues Nos. 2 and 3 in favour of the plaintiff by observing as follows‑‑ "As the alleged fact about Panchayat has not been proved the statement of D.W.4 Muhammad Ashraf is of no avail to the vendee. It was a sale pure and simple for Rs.3360. The defendant vendee has therefore failed to establish that the sale was in recognition of his right of pre‑emption, he has failed. He has to establish that it is not pre‑emptible to prove that the plaintiff is estopped by his conduct from bringing this suit. I decide both the issues against the vendee." The other issues having been decided in favour of the plaintiff, a decree for possession of the land against the defendant was passed on payment of Rs.3,

360. Aggrieved, the vendee, the former pre‑emptor, went up in appeal. The finding of the learned trial Court on the two material issues was set aside with the observations as hereunder‑ "There are circumstances in this case which verify the veracity of the statements of Patwari Muhammad Ashraf (D.W.4) and Muhammad Hassan (D.W.5) who in any case, are disinterested witnesses. First of all the disputed four Acres form part of the one Square of land in respect of which the appellant has filed his pre‑emption suit. Secondly, the appellant allowed his suit to be dismissed in default. As against all this evidence Haji Muhammad Din, respondent, had contended himself with his own statement only. Considering, therefore, the evidence as discussed above I have no hesitation in holding that the appellant and the two vendors entered into compromise whereby they agreed to sell four Acres of the disputed land to the former in consideration of his withdrawing his suit. In the circumstances, I am of the view that the disputed four Acres were sold to the appellant by the vendors in recognition of his superior right of pre‑emption." In Regular Second Appeal, the High Court restored the judgment and decree of the trial Court on the findings recorded as hereunder‑-- "It is now well established that a pre‑emptor cannot pick and choose and can in no case get a part of the bargain, if he is to be substituted it must be with regard to the entire transaction and not a part of the same. The respondents purchased only 32 Kanals out of one Square of land for which they had filed s suit for pre‑emption. Their suit was dismissed on 22nd February, 1959 whereas the mutation of sale in their favour took place on 3rd October 1958. Even the so‑called compromise was entered in the register of petition writer on 25th November, 1958 as against the mutation dated 3rd October, 1958. There is thus no connection between the compromise or the dismissal of the suit with that of the mutation. The sale in favour of the respondents was, therefore, a fresh sale conferring a fresh right of pre‑emption in favour of the appellant." Mr. Zaki‑ud‑Din Paul, Advocate, the learned counsel for the appellant, contended that on the evidence brought on record, it was clear beyond any shadow of doubt that the re‑sale of a part of the land sought to be pre‑empted was in fact the result of a compromise and had, been entered into in recognition of and to give effect to the superior right of pre‑emption of Khair Din who was then pre‑empting the sale. This being established on the record, such a sale made within the period of limitation cannot be pre‑empted as a fresh sale giving rise to the right of pre‑emption de novo. The learned counsel has relied on the decision in the case of Muhammad Din v. Muhammad Aslam P L D 1956 Lah. 541, to contend that even if evidence on this aspect of the matter was deficient, it had to be assumed that the re sale was for no other purpose but in recognition of and to give effect to the superior right of pre‑emption of Khair Din. Maulvi Sirajul Haq, Advocate, the learned counsel for the respondent, on the other hand, contended that if the sale was in recognition of and to give effect to the superior right of pre‑emptor then that right must be fully and substantially satisfied and that could be only where a substitution which is the core or the essence of the right of pre‑emption takes place. In the present case, there is no substitution because the area is substantially reduced from 200 Kanals to 32 Kanals and the price is also reduced from Rs.19,000 to Rs.3,

360. This has happened not on account of any compulsion of the law or the rights of the parties or on account of the availability of the property. This has, on the other hand, happened on account of an adjustment privately arrived at in derogation of and not in recognition of the right of pre‑emption as understood on the sub‑continent. He has relied on Muhammad Shafi v. Allah Din and others A I R 1934 Lah. 429, Muhammad Khan v. Sadiq and others P L D 1968 Lah. 929; Malik Hussain v. Lala Ram Chand P L D 1970 S C 299 and Ghulam Muhammad v. Khushi Muhammad P L D 1973 S C

444. The evidence brought on record establishes beyond any shadow of doubt that there was in the background of the new arrangement a pre‑emption suit instituted by Khair Din and it was on account of it that the pre‑empted sale was entered into. In order to be in recognition of the superior right of pre‑emption, such a sale had to satisfy in substance the requirements and the full amplitude of the right sought to be enforced. There could possibly be no curtailment of that right on any understanding between the parties not capable of explanation under the Pre‑emption Law. In the classic decision of a Full Bench of the Allahabad High Court in Gobind Dayal v. Inayatullah I L R 7 All. 776 the views are very relevant to the points under consideration‑-- "Pre‑emption is a right which the owner of certain immovable property possesses, as such, for the quiet enjoyment of that immovable property, to obtain, in substitution for the buyer, proprietary possession of certain other immovable property, not his own, on such terms as those on which such latter immovable property is sold to another person .... the right of pre‑emption is not a right of "re‑purchase" either from the vendor or from the vendee, involving any new contract of sale; but it is simply a right of substitution, entitling the pre‑emptor, by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title. It is, in effect, as if in sale-deed the vendee's name were rubbed out and the pre‑emptor's name inserted in its place. Otherwise, because every sale of a pre‑emptional tenement renders the right of pre‑emption enforceable in respect thereto, every successful pre‑emptor obtaining possession of the property, by the so‑called "re‑purchase" from the vendee, would be subject to another preemptive claim, dating, not from the original sale, but from such "re‑purchase"‑ a state of things most easily conceivable where the new claimant is a pre‑emptor of a higher degree than the pre‑emptor who has already succeeded. The result would be that pre‑emptive litigation could never end." The above concept of pre‑emption right has found approval in subsequent Allahabad's cases, namely, Raj Narain Rai v. Dunia Pande I L R 32 All. 340 and Nand Kishore v. Suraj Mat I L R 37 All. 429 and in Punjab record cases, namely, Abdulla v. Amir‑ud‑Din and others P R 76 of 1902 and Banarsi Das v. Haji Abdul Ghani P R 10 of 1909 followed by further approval in Tota Ram and others v. Kundan and others A I R 1928 Lah. 784; Muhammad Azim v. Ar. Sher Ali Khan and another A I R 1933 Pesh. 74 and Mohammad Shall v. Allah Din and others A I R 1934 Lah.

429. The recent decisions, those relied upon by the learned counsel for the respondents, are relevant. All these decisions keep up the integrity of the transaction and the right relating thereto and the concept of substitution of the pre‑emptor for the vendee. Looking to the transaction now under consideration, we find that it does not keep up either the integrity of the transaction or of the right nor is it a case of substitution. If it be so, then merely because the transaction is proved to be in recognition of right of pre‑emption though not giving full effect to such a right cannot be protected on the ground that it is reflective of the submission to such a right. The law as known on the sub‑continent for long has known no deviation from such an accepted concept and we find that the claim of the appellant on the facts of the case, is without merit. The appeal is, therefore, dismissed. No cost. M.B.A./K-10/S Appeal dismissed