2002 PLP 351 (MLD)

(5) Whether defendants were in possession of suit land as tenant, at the time of sale? (6) Whether plaintiff is estopped to file the suit by conduct? (7) Whether the suit is improperly valued for the purposes of court fee? (8) Relief.

2. The learned counsel for the parties vide statement dated 19‑5‑1982, did not press issues Nos.2, 3 and 6 and accepted the sale price to be Rs.4,00,000.

3. The learned trial Court vide judgment and decree dated 19‑5‑1982, answered Issues Nos. 1, 4, 7 and 8 against the respondent/plaintiff while Issues Nos.2 and 3 were decided in favour of the appellants, while Issue No.5 was decided against them. Issue No.6 was not pressed, and resultantly the suit was dismissed.

4. On respondent's appeal, the learned Additional District Judge, Sialkot, reversed the findings of the trial Court on Issues Nos. 1, 4 and 7 and partly decreed the suit in respect of land measuring 53 Kanals, 11 Marlas against payment of Rs.1,81,500 being the share of Mst. Hafizan Bibi, one of the co‑vendors, vide judgment and decree dated 15‑2‑1984, hence this second appeal.

5. The learned counsel for the appellant contended that vide his statement as P.W.2, the respondent/plaintiff admitted appellants to be tenants on the suit land wherefor, they have a superior most right under MLR‑115, and that by accepting respondent's superior right being brother of one of the vendors and thereby allowing partial pre‑emption of land measuring 53 Kanals, 11 Marlas, the learned Appellate Court committed a legal error. It was further claimed by the learned counsel for the appellants on the basis of PLD 1990 SC 299, PLD 1968 SC 140, PLD 1981‑SC 153, PLD 1973 SC 444 that the partial pre‑emption canot be allowed when there is‑ one single joint sale deed without splitting the price to per share of each of the vendee and that since in the present case there was one single sale deed and the entire sale price was paid in lump sum by all the vendees/appellants collectively, therefore, partial pre emption could not be allowed. The learned counsel for the respondents asserted that the findings of the learned Civil Judge against the plaintiff on question of their superior right as tenant (Issue No.5) had become final for lack of challenging in any appeal or cross‑objections by the appellants, and that they have to develop their case and cannot rely on the weakness of the case of the plaintiffs/respondents. It was also (sic) and shares were divisible and partial pre‑emption: in such a case was allowed as recognized by the superior Courts.

6. I have examined the record and considered the submissions of the learned counsel for the parties.

7. I am of the opinion that since appellant failed to challenge the findings on Issue No.5, decided by the trial Court, either through an appeal or cross‑objections, therefore, the observation of the learned Civil Judge became final and cannot be agitated through second appeal. Furthermore, it has been accepted by the parties and concurrently held by the Courts below that the appellant and respondent being owners of the estate possessed equal qualification and that respondent being brother of Mst. Hafeezan Begum (one of the vendors and owner of 53 Kanals and 11 Marlas of subject land) had a superior right to the extent of said 53 Kanals, 11 Marlas if partial pre emption was allowed by law, in the circumstances of the case. It has also not been denied by the parties that there was one sale deed for entire land and consideration of sale was paid in lump sum and not on shares basis. The only question therefore remains to be decided .is as to whether respondent admittedly being brother of Mst. Hafeezan vendor could be allowed partial pre‑emption of 53 Kanals, 11 Marlas by partial acceptance of his suit on deposit of part of the price as decreed by the learned Additional District Judge, through impugned judgment and decree. The position of law is well‑settled that ordinarily partial pre emption is not allowed and a pre‑emptor must seek pre‑emption of the entire land under sale and pay the entire sale price as paid by the vendees. It means that he is mandated by law "to take the whole bargain". Exceptions and limitations to the above principle of law have also become well defined. The scope of such exceptions and limitations is extremely narrow. Deviations from the general rule have been allowed in extraordinary and restricted circumstances. Quoting from the principles laid down in the case of Malik Hussain and others v. Ram Jandar and others, PLD 1970 SC 299, their Lordships of the Supreme Court of Pakistan in the case of Ghulam Muhammad and others v. Khushi Muhammad and others, PLD 1973 SC 444 held that:‑‑ Generally arises in the following circumstances namely: (i) When the pre‑emptor himself claims title to a part of the lands sold or to a share out of those lands. (ii) When the pre‑emptor assails the vendor's title to a part of the lands sold or the extent of his title thereto. (iii) When the pre‑emptor sets up title of third person to a part or share of the lands sold. It was held in that case that the answer to this question will depend upon whether the pre‑emption has been claimed under the Muslim Personal Law or under a statute. Dealing with the question of right of pre‑emption under the statute law, it was observed as under:‑‑ "The, right of pre‑emption is one of substitution even in the case of pre‑emption under statute law, unless the statute itself has made a departure in this regard to any extent. As for instance, the Punjab Pre‑emption Act, 1913 provides that the Court itself may, in certain circumstances, fix the price to be paid by the pre‑emptor instead of the price entered in the deed of sale and purported to have been paid by the vendee as consideration for the transaction. From the doctrine that the right of pre‑emption is one of substitutions, it follows that unless the statute conferring the right of pre‑emption otherwise provides, the pre emptor must take over the whole bargain, that is to say, the pre emptor must seek pre‑emption of the whole of the subject‑matter of the sale ‑and pay the entire price paid by the vendee as consideration. This, however, is subject to certain limitations which at any rate, do not include the vendors defective or want to title. It is not necessary to detail here all those limitations. Suffice it to say by way of example that a pre‑.emptor is not bound to seek pre‑emption of the whole of the property sold and pay the full sale price if his right of pre‑emption extends over only a portion of the property sold or if a portion of the property is capable of pre emption and the other is not. In case of any such limitation, partial pre‑emption on payment of proportionate price may be permitted as of necessity and not because the pre emptor wants it. It is noticed that in the present case the pre emptors, right of pre‑emption is not subject to any kind of limitation; their right of pre‑emption extends over the whole of the lands sold, and no part of the lands is incapable of pre emption." From the above observations, it is clear that ordinarily the pre emptor must take over the whole bargain and he must seek pre‑emption of the whole of the subject‑matter of the sale and pay the entire price paid by the vendees as consideration. There are, however, certain exceptions which according to the view taken in this decision include the vendors defective or want of title and it is not open to the pre‑emptor to give up the claim as he likes. In the light of the above observations it is clear that the respondents' case does not fall within the limitations specified in this decision. The partial pre‑emption can only be permitted if it is as of necessity and not because the pre‑emptor wants it.

8. In view of the above exceptions enumerated by the Hon'ble Supreme Court of Pakistan, the case in hand has to be examined from another angle as to whether respondent claimed partial pre‑emption and did he plead any of the above stated extraordinary circumstances and did he show any necessity within the above defined parameters to claim partial pre‑emption. Examination of respondent's plaint and his evidence does not reveal that he either pleaded, asserted or deposed to avail a right of partial pre‑emption on the basis of necessity in terms of any or the allowed exceptions of the general rules. Furthermore, the rule ‑ of necessity cannot extend to a pre‑emptor as an endowment or gift of partial pre‑emption without showing the reason, basis and justification to allow him the exceptionality from the general rules. In the present case, the learned Additional District Judge was thus not legally justified to allow partial pre‑emption to the respondents.

9. Another factor to be considered was as to whether the sale was divisible or not to allow partial pre‑emption. As stated above, sale was executed through a registered sale deed i.e. Exh. P.I of the entire land in question by all the vendors to all the vendees in one indivisible parcel by exchange of sale consideration if Rs.4,00,000 in lump sum. Neither share of any vendee was specified nor proportionate price of each was stated in the sale deed wherefore it was one joint indivisible sale. As such partial pre‑emption, even if, permissible could not be allowed in the present case. Hon'ble Supreme Court of Pakistan in the case of Muhammad Khan v. Abdul Khaliq PLD 1981 SC 153/156 referring to the case of Abdullah and others v. Abdul Kareem and 3 others PLD 1968 SC 140, pronounced law by holding:‑‑ "To find out whether such a sale is divisible the Court is to see two things viz. (i) whether the share of each vendee is specified and (ii) whether the proportion of price contributed or paid by each vendee is indicated separately. If any of these two ingredients is lacking, then the sale remains one joint indivisible sale and a suit for pre‑empting the share of only one vendee is C not maintainable because in the absence of (confining ourselves to the facts of the present case) specification of separate sale price paid by each vendee, the unity of such a sale cannot be broken, and a suit for partial pre‑emption with regard only to a part of the land, cannot be maintained." None of the tests laid down regarding divisibility of a sale have been fulfilled by the respondent in this present case. Neither the share of the each vendee nor proportion etc. of price contributed by each vendee, has been separately stated. As such sale in the present case transacted through registered sale deed i.e. Exh.P.I. was indivisible and partial pre‑emption. This appeal is therefore accepted; the impugned decree and judgment dated 15‑2‑1984 passed by the learned Additional District Judge, Sialkot is set aside. As a result, respondent's suit shall stand dismissed as adjudged by learned Civil Judge, Daska vide his judgment and decree dated 19‑5‑1982. Parties are left to bear their own costs. Q.M.H./M.A.K./W‑38/L Appeal allowed.