1987 PLP 2476 (CLC)

Ali Hussain, v Mir Zaman 1987 C L C 127; Khan Muhammad and 3 others v Ghulam Rasool and 5 others P L D 1987 Lah. 71 and Abdul Ghaffar Khan and others v Saghir Ahmad Aslam and others PLD 1987 Lah. 358 ref. (d) Punjab Pre‑emption Act (I of 1913)‑ ‑‑‑Ss.4 & 15‑‑Pre‑emption suit‑‑Decrees passed by Courts of competent jurisdiction prior to the decision of Supreme Court (Appellate Shariat Bench) in P L D 1986 S.C. 360, held, were not affected in their validity by the said decision of Supreme Court‑‑Theory of continuity of proceedings was not relevant. Ali Hussain v Mir Zaman 1987 C L C 127; Khan Muhammad and 3 others v Ghulam Rasool and 5 others P L D 1987 Lah. 71 and Abdul Gharfar Khan and others v Stighir Ahmad Ashim and others PLD 1987 Lah. 358 ref. Muhammad Munir Peracha for Appellants. This Civil Revision is by Sarwar Din and Mst. Bakht Bano, defendants in the suit for pre‑emption brought by plaintiffs Zikri. Khan and Misri Khan. Land measuring 33 kanals 4 marlas, 4/9th share of Khasra No.1194, situated at Mauza Baryar, Tehsil Attock, belonged to Mst. Zohra Sultana and others, who sold this piece of land to defendants at the price of Rs.75,000.00 by a deed of sale registered on 15‑3‑1984. Plaintiffs claimed pre‑emption in respect of this sale and sued to recover the possession of the property. Right of pre‑emption was based on the ground of being owner of the estate. Suit was traversed. It was alleged in defence that as, the plaintiffs assisted in the sale and took part in it, they were estopped to sue, that the plaint was deficiently stamped, that the defendants were entitled to receive Rs.6,000 as the miscellaneous expenses incurred by them on the sale. It was further alleged that the land was purchased for Rs.75,000 and the sale price was fixed in good faith and was .actually paid to the vendors, Right to pre‑empt was also denied and ,it was alleged that plaintiff had no better right. On consideration of evidence, Court found for the plaintiffs and gave them decree on 18‑6‑1986 and directed them to deposit Rs.79,875 in Court by or before 19‑7‑1986, failing which their suit was to stand dismissed. Defendants appealed. It failed on 20‑12‑1986. In support of the revision, petitioners submitted three arguments: ‑

(i) That the sale sought to be pre‑empted was a divisible transaction and the defendant No. I's right being at par with the pre‑emptors, suit could not be decreed for the whole of the land; (ii) That doctrine of sinker did not apply to Punjab; and (iii) That the decision of the Shariat Appellate Bench of the Supreme Court of Pakistan in Government of N.‑W.F.P. through Secretary , Law Department v Malik Said Kamal Shah P L D 1986 S.C. 360 applied retrospectively and the appeal being in continuation of the proceedings in suit, pre‑emption suit could not be decreed on the ground declared repugnant to Quran and Sunnah. On consideration, all the contention raised in support of the civil revision are found to be without substance. It is not denied that plaintiffs are owners of the estate. This fact is otherwise also well‑established by entries in revenue papers, plaintiffs' oral evidence, which was not cross‑examined and the absence of denial by the defendants that the plaintiffs were owners of the estate. It is admitted and otherwise proved that Sarwar Din, defendant No.1, was owner of the estate. His right, therefore, was at par with the plaintiffs, but his ownership of agricultural land does not materially assist his case, because defendant No.2, his daughter and a co‑vendee with him, did not possess such a qualification. Copy of the sale‑deed indicated that sale was to two vendees, who were to take the property half and half. There was no mention in the deed as to how much, out of the sale price, was contributed and paid by each vendee in respect of the share purchased by him or her as the case may be. From the sale‑deed and the endorsement of the Sub‑Registrar appearing thereon, which attract presumption of truth, it was not possible to say about the proportion of the price paid by each vendee. Sale‑price of Rs.75,000 was paid in lump sum. Where a joint sale‑deed in favour of two or more vendees specifies the shares to be taken, but price paid by each vendee towards the purchase of his share was not specified, the purchase was a joint and indivisible transaction. Specification of shares in the sale deed was merely an arrangement between the vendees inter se and does not affect the oneness of the transaction, so far as the vendor were concerned. In this case, onus rested on the vendees to establish that though they purchased the land jointly through one sale‑deed yet the share purchased by each one was separate and distinct. They did not take up this point in the written statement. They also did not claim an issue on this point and did not lead evidence to establish that the transaction, though one, was distinct and divisible, and in fact there were two transactions. In the absence of clear evidence in this behalf, terms of the sale‑deed alone are to be looked into. This view is clearly supported by the decision of the Supreme Court in Abdullah and 3 others v Abdul Karim and others P L D 1968 S.C.

140. As for the principle of sinker in law of pre‑emption, meant for exclusion of strangers, it is, sufficient to say that its applicability to the territory of Punjab is established by a long line of decisions from this Court. Therefore, if a person possessed of a right of pre‑emption in a property purchases it in association with a stranger, who had no right of pre‑emption and the sale is found to be joint and indivisible one, on a suit for pre‑emption brought by another pre‑emptor, he sinks to the level of a stranger and cannot defend even his own share of land. By joining a stranger in the transaction, he is shown to have offended the basic principles of law of pre‑emption that is exclusion of strangers. On these premises, it was rightly found by the learned Judges of the Courts below that plaintiffs as owners of the estate were entitled to succeed and get the land in preference to the vendees. I shall now attend to the effect of the decision of the Supreme Court in Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah P L D 1986 S.C.

360. It was declared that ownership of estate as a ground of pre‑emption was repugnant to the injunctions of Islam. Decision of the Court took effect from 31‑7‑1986. In this case pre‑empted sale was made on 15‑3‑1984. Trial Court acknowledged the superior right of the plaintiffs and gave them decree on 18‑6‑1986 decretal amount was deposited within the time‑limit fixed by the Trial Court. It has been observed in number of decisions that the pre‑emptor is obliged to maintain his superiority on the date of sale sought to be pre‑empted, on the date of filing the pre‑emption suit and finally till the date of judgment by the primary Court and not beyond that Learned counsel has not brought to my notice any decision, in which a contrary view has been taken by 'this Court. I have already taken this view in Ali Hussain v. Mir Zaman 1987 C L C

127. In Khan Muhammad and 3 others v. Ghulam Rasool and 5 others P L D 19871 Lahore

71. Similar views were expressed by my learned brother Muhammad Munir Khan, J. This view is also supported by a full bench decision of this Court in Abdul Ghaffar Khan and others v. Saghir Ahmad Aslam and others P L D 1987 Lah.

358. On examination of the case‑law, it is clear to me that judgment of the Shariat Appellate Bench of the Supreme Court of Pakistan, in no manner, assists the argument of the petitioners and decrees passed prior thereto by the Courts of competent jurisdiction are not affected in their validity. Theory of continuity of proceedings pressed in aid also does not advance the case of the petitioners. For the reasons set out above, I would agree with the learned Courts below, uphold their decisions, and decline interference. In result, petition fails and is dismissed summarily. M.B.7A. /S‑110/L Petition dismissed.