P L D 1984 Peshawar 265 (PLP)

(6) Whether plaintiff has got superior right of pre‑emption? (7) Whether sale price was fixed in good faith or duly paid? (8) What is the market‑value? (9) Relief.

3. After recording such evidence of the parties as they wished to adduce the learned Civil Judge who tried the suit by his order dated 16‑7‑1981 answered issues Nos. I, 5 and 6 in favour of the plaintiff wherein it was held that he had a cause of action and the above mentioned consent preemption decree in favour of Rahim Shah was ineffective on his right. In connection with issues Nos. 7 and 8 it was held that the amount of Rs. 64.000 was the sale consideration and that the same had been paid to the vendor. The status of defendant No. 2 was held as that of rival pre‑emptor and since both the plaintiff and defendant No. 2 were found co‑sharers in the suit land both of them were held to be possessing superior right of pre‑emption against defendant No.

1. Consequently a decree based on a ratable distribution of the suit land in the light of the provision of section 13 of the Pre‑emption Act was passed in favour of plaintiff and defendant No. 2 on payment of different amounts as has been clearly mentioned in detail in the last para. of the judgment. Holding the plaintiff and defendant No. 2 entitled to the decree of pre‑emption in respect of the suit land proportionate to their respective share in the suit land the plaintiff and defendant No. 2 were held entitled to get the property in dispute in the ratio of 33.1, respectively. As such the plaintiff was granted a decree for possession by pre‑emption in respect of the suit land to the extent of 11 Kanals 18 Marlas on payment of Rs. 58,056 while a similar decree to the extent of 8 Marlas was passed in favour of defendant, No. 2 on payment of Rs. 1,944 against defendant No. 1.

4. It transpires from the record of the appellate Court that both Rahim Shah an Saif‑ud‑Din defendants in the suit preferred separate appeals. Rahim Shah defendant in his appeal challenged the partial decree in favour of Muhammad Din pre‑emptor whereas Saif‑ud‑Din being aggrieved with the finding in connection with the sale consideration fixed. by the learned trial Judge challenged the finding of the trial Court to that extent and claimed a sum of Rs. 70,000 instead of the above‑mentioned amount held to be the price of the suit land. Vide his detailed judgment dated 18‑6‑1983 Mr. Muhammad Nawaz Khan, District Judge, Kohat dismissed both the appeals so filed for the reasons recorded in detail in the judgment.

5. Rahim Shah defendant No. 2 in the suit has come up in revision petition against the judgment and decree of both the Courts below.

6. Mr. Abdus Samad Khan, Advocate for the petitioner and Mr. Muhammad Inam Khan, Advocate for the respondent heard and the record perused.

7. The main dispute between the parties in the present revision petition before me is regarding the point as to whether the suit of Muhammad L)in respondent was entertain able and competent when a decree for pre‑emption had already been passed in favour of Rahim Shah petitioner who had equal rights with the plaintiff /respondent before the institution of the suit by him. It need to be resolved as whether the findings of the learned Courts below in connection with issue No. 5 were well‑founded and Rahim Shah petitioner was rightly treated as rival pre‑emptor to the circumstances. The contention of the learned counsel for the petitioner is that since the purchaser Saif‑ud. Din had transferred the land in dispute before the institution of the present suit to Rahim Shah petitioner who had equal right with the plaintiff/pre emptor, the suit of plaintiff/respondent was not entertainable in view of the provision contained in section 17 of the N.‑W. F. P. Pre‑emption Act. The contention of the learned counsel for the respondent on the other hand is that the land was never transferred by Saif‑ud‑Din, the original vendor to the petitioner outside the Court‑ and that acquiring the land on the basis of a pre‑emption decree was not a transfer contemplated by section 17 of the N: W. F. P. Pre‑emption Act, and that in the circumstances section 13 of the N.‑W. F. P. Pre‑emption Act was applicable which was correctly applied by the learned Courts below.

8. The learned counsel appearing for petitioner contended that the petitioner had been given a decree before the respondent could institute the present suit and as such the Courts below had become functus officio as there was no sale left with there respondent to pre‑empt or for the Court to decide the same by applying section 13 of the Pre‑emption Act. He submitted that in recognition of his superior right of pre‑emption the defendant/vendee had transferred the land in dispute to the petitioner and it matter little if the mentioned arrangement was brought to the notice of the Court and the suit was subsequently decided in accordance with the terms of the compromise affected between the parties. According to him a compromise is a settlement which arrives outside the Court without resorting to law and when such compromise is submitted, the Court concerned is left with no discretion but to pass a decree in terms of the compromise so arrived at and as such it shall not be considered the act of the Court but. the act of the parties to the compromise.

9. Mr. Muhammad Inam Khan, Advocate representing the respondent on the other hand relying on Ali Mardan and 3 others v. Khalid Mehmud and another (P L D 1973 Pesh. 167) submitted that the transfer in question in the name of Rahim shah by the vendee Saif‑ud‑Din was not a transfer in recognition of the superior right of pre‑emption of the petitioner outside the Court but it was a transfer through a pre‑emption Court decree and through the agency of the Court and as such in the circumstances when the petitioner was' impleaded in the suit, his position had become that of a rival pre‑emptor and was rightly considered as such.

10. The question that arises is whether the consent decree passed in favour of Rahim Shah petitioner would have no effect on' the right of Muhammad Din respondent. It is contemplated by section 17 of the N.‑W. F. P. Pre‑emption Act, 1950 that no suit for pre‑emption shall lie where the purchaser has prior to the institution of suit transferred the pro perty in dispute to a person having a right of pre‑emption equal or superior to that of the plaintiff. In the instant case no doubt prior to the institution of the present suit the petitioner obtained a consent pre emption decree through Court in a pre‑emption suit brought by him against the vendee but the word "transfer" in section 17 of the Act is significant and it is to be determined whether the compromise decree Was tantamount to transfer in favour of Rahim Shah petitioner as contemplated by section 17 of the Act. The decision of the controversy involved in the present petition thus mainly rests on the meaning of the word "transfer" used in subsection (1) of section 17 of the N: W. F. P. Pre‑emption Act.

11. A similar question came up for consideration in Ali Mardan and 3 others v. Khalid Mehmud and another. In that case reference was made to section 5 of the Transfer of Property Act wherein the term "Transfer of Property" has been defined and his Lordship after reproducing the mentioned definition made the following observations "A mere perusal of the above definition shows that the conveyance must be brought about by the act of a person conveying the property and not in any other way. In this view of the decree in a pre‑emption suit cannot be called the act of a person conveying property and the contention of the learned counsel for the appellants, therefore; seems to be well‑founded. I, therefore, hold that. the land sold was never transferred to Khalid Mahmood and that section 17 of the N.‑W. F. P.' Pre‑emption Act 'had no application."

12. Reliance was also placed on Kundan Lal v. Amar Singh and others (A I R 1927 All. 664) to which a reference was also made in the above‑cited authority of the Peshawar High Court. While dealing with somewhat similar question their Lordships of the Allahabad High Court made the following observa tions :‑ "It matters little who comes to Court first, provided that they all come within the period of limitation. Section 20 of the Act cannot apply to the case where one rival pre‑emptor has obtained a decree for pre‑emption first. The expression where the purchaser has transferred the property in dispute to a person having a right of pre‑emption, etc. cannot cover the case of a pre‑emptor obtaining a decree for pre emption for, as pointed out by us, that is not a case of a transfer by the vendee to the pre‑emptor." '

13. For the above it becomes evident that the consent'decree in favou of Rabim Shah petitioner would not amount to transfer in his favour unde section 17 of the Act and as such shall have no effect on, the rights of the respondent/pre‑emptor.

14. Learned counsel for the petitioner could not cite any clear authority to the contrary but has placed reliance on an Indian Authority reported as A. I. R. 958 S C (India)

838. A perusal of the authority cited above reveals that the controversy involved in that case was somewhat similar to the one in the present case but was obviously based on interpretation of a different law not identical with the relevant provision of the N.‑W. F. P. Pre emption Act, 1950 and having different facts. Even otherwise the authority so produced has no binding effect on the Courts functioning in this country.

15. Here in the instant case, as already discussed, we are concerned with the question whether land obtained under a pre‑emption decree is a transfer of the land for the purpose of section 17 of the Act. The decree in a pre‑emption suit cannot be called the act of a person conveying a property and, therefore, getting of land on the basis of a pre‑emption decree is not a transfer within the meaning of section 17(1) of the N.‑W. F. P. Pre‑emption Act, 1950. It has thus become clear that the decree in favour of Rahim Shah petitioner on the basis of compromise between him and the original purchaser would not amount to transfer within the meaning of section 17 of the Act and as such shall have no effect on the rights of the plaintiff/pre-emptor who is to be treated as a rival pre‑emptor in the circum stances.

16. There exists no dispute between the parties that both the petitioner and Muhammad Din respondent are co‑sharers in the suit land as such were rightly held entitled to the decree of pre‑emption in respect of the suit land proportionate to the shares held by them, respectively in the land within the terms of section 13 of the Act.

17. For the reasons stated above I find no merit in this petition which is accordingly dismissed. I would, however, snake no order as to costs. M. Z. M. Revision dismissed.