1984 PLP 1404 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑‑ The dispute in the present petition relates to land measuring 3 Kanals 5 Marlas bearing Khasra No.1829/977, Khatuni No.307/1113 in village Dina Thikarian, Tehsil and District Jhelum.

2. Muhammad Iqbal and Muhammad Gulzar sons of Karam Din, Muhammad Maroof, Zahoor Ahmad and Mst. Zahida Parveen sons and daughters of Karam Elahi were owners of the land in question which they sold to Diwan Ali (now deceased represented by respondents Nos.l to 9) and Muhammad Iqbal vide Mutation No 3644, dated 29‑5‑1974 for a consideration of Rs. 6.500. However, according to the petitioner, the ostensible value was fictitiously recorded as Rs.50,800.

3. The petitioner filed a suit for pre‑emption on the ground that he is real brother of Muhammad Iqbal and Muhammad Gulzar vendors, real uncle of Muhammad Maroof, Zahoor Ahmad and Mst. Zahida Perveen vendors; co‑owners it, Khata; owner in the village and that he cultivates the land in question. The suit was contested by the respondents. The learned trial Court dismiss ‑d the suit with costs on 16‑6‑1976.

4. An appeal was filed against the aforesaid order but the same was dismissed by the learned District Judge on 10‑3‑1980. Thereafter R.S.A. was filed in the Lahore High Court which was partially accepted by the High Court vide the impugned judgment dated 24‑4‑1983 holding that the sale was ascertainable to the rights of Diwan Ali who was entitled to exemption as against Muhammad Iqbal who was a stranger. Consequently, the suit with regard to 12 Marlas said to have been purchased by Muhammad Iqbal was decreed on payment of proportionate price whereas sale to the extent of alleged sale in favour of Diwan Ali was upheld but on the grounds different from those canvassed by the Courts below and to that extent the spit was dismissed

5. Petitioner's counsel contended that the two Courts below have correctly held the sale to be indivisible, and with regard to indivisible sale this Court has authoritatively held in Manghta Khan and others v. Mst. Hamida Begum and others P L D 1981 S C 51 that the doctrine of sinker would apply in a case where an exemptee associated with himself a stranger in an indivisible sale. It was further argued by the learned counsel that the learned High Court had not correctly applied the dictum laid down by this Court in the afore‑cited authority; that the decision in another case. Abdullah and 3 others v. Abdul Karim and others P L D 1968 S C 140 was also attracted to the facts of the present case; that the learned High Court, it is submitted, has erred in law in holding that the doctrine of sinker was not applicable in the instant case and thus by implications the learned Judges have conceded that the sale was indivisible but they have applied their own reasoning declaring the sale to the extent of Diwan Ali's share to be exempt from pre‑emption.

6. Learned counsel for the caveator contended that in the Mutation No.3644 the share of Muhammad Iqbal was shown to be 12 Marlas and also in the attention order the revenue officer had recorded that share of Muhammad Iqbal comes to 12 Marlas out of total area of 3 Kanals and 5 Marlas and that Diwan Ali being an affectee of Tarbela Dam, was protected under section 8(2) of the Punjab Pre‑emption Act I of 1913 as he was a Certificate Holder in accordance with the Notification issued under the same section.

7. The learned Judges of the High Court have referred to Mst. Fateh Bibi v. Ahmed Khan and others P L D 1971 Lah, 171 wherein the rule was explained thus "If a purchaser having an equal right of pre‑emotion, associates with himself in the purchase, a person with rights inferior to those of the pre‑emptor, he is not entitled to resist the claim of such pre‑emptor even in respect of his own share of the purchase. The purchaser in such a case would be deemed to have sunk down to the level of his associate and, therefore, would not be entitled to resist pre‑emotion even qua his own share." The learned Judges examined this question further in the impugned judgment in the light of Manghta Khan and others v. Mst. Hamida Begum and others P L D 1981 S C 51. "This rule can hardly have any application to a case where the transaction is exempted from the right of pre‑emotion under section 8 (2). The effect of the Notification under this section is that the right of pre‑emotion in respect of the transaction covered thereby is extinguished. In the instant case, the respondents did not claim any right of pre‑emotion but sought to defeat the one asserted by the appellant on the strength of the Notification. In my estimation there is absolutely no basis to extend the rule of sinker to the case in hand."

8. In the N. ‑W.F.P. Pre‑emotion Act XIV of 1950 section 19 is to the effect that where the purchaser having equal or a superior right to the pre‑emptor, joins with him, a person having no right or having right inferior to the pre‑emptor, the purchaser loses his preferential right, but there is no corresponding provision to section 19 in the Punjab Pre‑emotion Act I of 1913. This being so the right of pre‑emotion can be enforced subject to the condition and limitation laid down in the statute itself. Under section 6 of both the Pre‑emotion Acts a right of pre‑emotion shall exist in respect of agricultural land, village immovable property, and urban immovable property subject to the provisions and limitations contained in these Acts. This gives mandatory effect to the requirement of section 19 whereas in the Punjab Pre‑emotion Act there is no such provisions and limitation. Therefore, mandatory effect would only be given to the exemption provided under section 8(2) because where a statutory provision excluding right of pre‑emotion is contained categorically of cases basically the right of pre‑emotion extinguishes against a person i.e. who is a Certificate Holder. Therefore, the learned Judges of the High Court have come to the right conclusion that qua the share of the Diwan Ali the right of pre‑emotion stands extinguished, and, therefore, the suit to that extent would stand dismissed. Thus, we find no merit in this petition which is, accordingly, dismissed. S.Q. Leave refused.