1991 PLP 916 (SCMR)

MUHAMMAD AFZAL ZULLAH, CJ. ‑‑‑This direct appeal by the vendees' side in a pre‑emption matter is directed against the judgment of the Peshawar High Court whereby the respondent/pre‑emptor's Civil Revisions were allowed and his two suits for pre‑emption were decreed. The respondent had filed two suits for pre‑emption against Saifur Rehman and Badshah Gul appellants who had purchased 107 Kanals 17 Marlas of suit land through Mutation No. 317 attested on 9‑7‑1978 (subject‑matter of Suit No. 10/1 of 1979). The second Suit (No. 178/1 of 1979) related to the sale of 9 marlas to the appellants through Mutation No. 361 attested on 27‑1‑1979. The respondent's suits were dismissed. His appeals were also dismissed. The High Court, however, allowed his Revisions by noticing the facts and grounds as under:‑‑ The plaintiff/respondent had initially superior right of pre‑emption on the basis of contiguity but Badshah Gul defendant/appellant claimed that he having become owner through an exchange mutation No. 359 entered on 4‑1‑1979 and attested on 27‑1‑1979 in a piece of land contiguous to the suit land could defeat the respondent's suit on account of this improvement. This plea was not accepted and it was held that the attestation of exchange mutation on 27‑1‑1979 was after the filing of the suit by the respondent on 6‑1‑1979, therefore, Badshah Gul could not avail of the improvement. The High Court observed as follows:‑‑ "The learned counsel for the petitioner while relying on PLD 1975 Pesh. 34 titled Rehan v. Qazi Azizur Rehman and 5 others' contended that the defendants/respondents could not improve their status after the institution of the suit and according to the learned counsel the law contained in the amended subsection (2) of section 17 of the N.‑W.F.P. Pre‑emption Act has been interpreted in the above‑quoted authority, wherein it is held that the vendee could improve his status before the institution of the suit and the previous authorities referred to in the judgment of the lower appellate Court are now of no avail. The learned counsel for the respondents was unable to say anything in this behalf rather acceded to the position that the vendees could improve their status only before the institution of the suit but not thereafter.' Learned counsel for the appellants contended that as held by this Court in C.A. 377 of 1987, decided on 14‑11‑1990 the attestation of mutation does not always mean that the oral transaction which is evidenced in the attested mutation also takes place on the same day. The oral sale and mutation may or may not be contemporaneous. In this case according to him the oral sale took place on 4‑1‑1979 when the mutation was entered. Its attestation took place few weeks later on 27‑1‑1979. That does not mean that the purchase was also made on 27‑1‑1979 and the sale in this case having thus taken place on 4‑1‑1979 while the suit was filed on 6‑1‑1979, the improvement was within the prescribed period. Learned counsel for the respondent conceding the above‑noted position, however, vehemently contended that this improvement was available only to Badshah Gul and not to Saifur Rehman and Badshah Gut having joined Saifur Rehman with him as a co‑vendee the principle of sinker as contained in section 29 of the N.‑W.F.P. Pre‑emption Act would be attracted and the decree in favour of the respondent could be maintained. Learned counsel for the appellants on this issue contended that the 'question of sinker is being raised for the first time and because it is not permissible in the Muslim Law of Pre‑emption (doubtful), therefore, this Court should not exercise discretion in permitting the respondent to raise this plea now. Had it been raised earlier at proper time, learned counsel relying on Manghta Khan v. Hamida Begum (P L D 1981 SC 51) and Fazal Elahi v. Dewan Ali (1984 S C. M R 1404), argued then Badshah Gut appellant could have led evidence to show that both the purchases by Saifur Rehman and Badshah Gut were separable (and in fact separate); notwithstanding such entries which might indicate that the purchase was indivisible. Learned counsel for the respondent in this behalf relied on Abdullah v. Abdul Karim (P L D 1968 SC 140), Muhammad Ismail v. Karamat Ali P L D 1989 SC 474 and Mir Ahmad v. Ataullah alias Atta Muhammad P L D 1991 S C 210 to contend that if there is no clear material to show that the vendees made divisible purchases, vis‑a‑vis, area and price, the purchase would be treated as indivisible. The mutation entries in this case are not much helpful. If they are taken without any further explanation or evidence to explain its nature, it might have been possible to hold that the transaction was indivisible; but there is considerable force in the plea raised from the appellants' side that no plea of sinker having been raised at an earlier stage, the appellants have been deprived of a chance to establish the divisibility of the transaction into two equal parts between the two vendees. He made a very assertive statement at the Bar that indeed they were two divisible purchases with separate area and price and that the appellants could have proved it. Learned counsel for the respondent has not dealt with the assertion of the learned counsel for the appellants that the principle of sinker is not applicable in Islamic Shufa. However, on the additional ground that if opportunity would have been afforded; by the respondent taking the plea of sinker at proper stage the appellants might have proved that the transaction was divisible, we in the circumstances of this case do not consider it fit to permit the respondent to raise this plea now. The afore‑rendered decision will not give complete success to the appellants on the saying of their learned counsel himself that the transaction is divisible and, therefore, the principle of sinker would not apply, it is apparent that only Badshah Gul had improved his position before the filing of the suit and not Saifur Rehman hence in so far as half of the transactions in favour of Badshah Gut are concerned, the respondent's suit would fail and the decree to that extent passed in his favour is set aside. The remaining part of the decree with regard to the half of the property which has gone to Saifur Rehman vendee, will remain intact. It may be stated that the learned counsel for the respondent candidly stated that whatever the decision it will be equally applicable to both the transactions of 9‑7‑1978 and 27‑1‑1979 because there is no distinction. Thus, this appeal is partly allowed to the extent of one half of the property in favour of Badshah Gul appellant. The appeal of Saifur Rehman is dismissed. The decree in favour of the respondent is upheld to the extent of the purchase by Saifur Rehman; namely, half of the property for half of the price having thus been modified. Such would apply mutatis mutandi to Civil Petition 58/P of 1984 by conversion to appeal. The parties concerned may make application if so advised for purpose of making balance payment and/or withdrawal of any amounts. M.B.A./S‑609/S Order accordingly.