1989 PLP 471 (MLD)

S. 15--Superior right--Principle of sinker--Effect--Petitioners vendees purchased land alongwith a stranger before institution of suit by respondent through pre-emption--Contention that petitioners having joined a stranger with them, their position was also relegated to that of a stranger on the basis of principle of sinker, and as such they could not claim equal right of pre-emption by becoming owners in the estate and that petitioners' sale was also subject-matter of a pre-emption suit, repelled--Held, it did not make any difference even if the said sale by itself could be pre-empted by any person on the basis of ownership of estate in which petitioners could be treated as strangers having joined with them a non-owner--Such suit having not been decreed before 31-7-1986 (as per law laid down by Shariat Appellate Bench of Supreme Court in Said Kunal Shah's case reported as PLD 1986 SC 360) was liable to be dismissed--Courts below having acted with material irregularity and illegality in decreeing suit of respondent- Impugned judgments and decrees were set aside and suit filed by respondent against petitioners was dismissed in circumstances. Shamim Abbas Bokhari for Petitioners. Syed Naghman Haider Zaidi for Respondent. The respondent filed a suit for possession of land in dispute through pre -emption measuring 140 kanals 14 marlas on 21-9-1981. Before the institution of the suit the present petitioners i.e. the vendees alongwith Sh. Muhammad Javaid had already purchased land measuring 140 kanals 4 marlas in the same village through mutation sanctioned on 19-5-1980 which was produced in evidence as Ex. D.7. The right of pre-emption was claimed on the ground that the plaintiff was owner of the estate. This claim was contested by the petitioners on the strength of the said purchase of land by them alongwith said Sh. Muhammad Javaid before filing a suit claiming that they having also become owner in the estate, therefore, their right of pre-emption was equal to that of the plaintiff, as such, the suit was liable to be dismissed. 2. The learned trial Court on the crucial issue No. 3 held that the said sale of the petitioners was subject-matter of a suit for possession of land through pre -emption and further that the third vendee in the said sale i.e. Sh. Muhammad Javaid was not owner of the estate, as such, having joined a stranger with them, the position of the present petitioners was also relegated to that of a stranger on the basis of principle of sinker, therefore, they could not claim equal right of pre -emption in the present suit. Through judgment and decree dated 13-5-1985 the suit was decreed by the learned trial Court. The appeal filed by the petitioners against the said judgment and decree has also been dismissed by the learned lower appellate Court through judgment and decree dated 12-6-1986 which has been assailed in this revision petition. 3. Learned counsel for the respondent admitted that the suit filed by the respondent/plaintiff to pre-empt the sale of the said land by the petitioners through Ex. D.7 alongwith Sh. Muhammad Javaid was not decreed at any stage before 31-7-1986. The rule of sinker was not relatable to the sale in dispute which was subject-matter of the present suit. The petitioners claimed that they had improved their status before filing the suit having purchased the land through Ex. t). 7 and became owner of the estate in the village. The rule of sinker could not be applied to the claim of the petitioners, of being owner of the estate to defend the present suit which was an independent transaction. Even if the petitioner purchased land jointly with other who was stranger, he could claim himself to be the owner of the estate to defend the present suit against him in respect of the sale which was sought to be pre-empted, though the sale through which he became owner of the estate was itself subject-matter of the suit. The petitioners under the law could improve their status before the institution of the suit. They could not be held to have not become owners of the estate though they had joined with them a stranger which fact could not be urged to negate their right as owner of the estate. It did not make any difference even if the said sale by itself could be pre-empted by any person on the basis of ownership of estate in which the petitioners could be treated as strangers having joined with them a non-owner. In view of the law declared by the Supreme Court the said suit having not been decreed before 31-7-1986 is liable to be dismissed. 4. The two Courts below, therefore, acted with material irregularity and illegality in decreeing the suit of -the respondent. This revision petition is accepted. The impugned judgments end decrees passed by both the Courts below are set aside and the suit filed by the respondent against the petitioners for possession of land through pre-emption is dismissed without any order as to costs. M.Z.S./A-566/L Petition accepted.