P L D 1988 Peshawar 76 (PLP)

(3) Whether the suit is within time? OPP. (4) Whether the plaintiff is estopped by his conduct to bring the present suit? OPD. (5) Whether the suit of the plaintiff is competent in its present form? OPP. (6) Whether the plaintiff has got superior right of pre-emption? OPP. (7) Whether a sum of Rs.18,000 was actually fixed and paid in good faith as sale price of the suit lard? OPD. (8) What is the market value of the suit land? OPP. (9) Whether the sale in favour of defendant No.2 is collusive, fraudulent and hence is ineffective against the rights of plaintiff, if so, its effect? OPP. (10) Whether the plaintiff is entitled to the decree as prayed for? (11) Relief.

2. On conclusion of the proceedings, the learned trial Judge answered issues Nos.2 and 4 in the negative. On issue No.3 his finding was that the suit was within time. Issue No.5 was found in the affirmative and on issue No.6 the finding was that although the pre‑emptor was co‑owner in both the suit Khatas but since the original vendee (defdt. No.1) was also co‑owner in suit Khata No.248, the pre‑emptor had no right to pre‑empt the land sold out of that Khata, Issues Nos. 7 and 8 were found on the basis of five‑yearly average placed by Patwari Ilaqa on the record. On issue No.9 it was held that since the resale by defendant No.1 in favour of defendant No.2 was effected during the pendency of the suit (wrongly said so as the sale by defendant No.l in favour of defendant No.2 had taken place before the institution of the suit), it could not affect the rights of the pre‑emptor. Issue No.1 was also answered in favour of the pre‑emptor and on issue No.10 it was held that the pre‑emptor would succeed on the ground of co‑sharership only in respect of the land sold out of Khata No.247, but respecting the other land he was found having not a superior right. Consequently, by judgment and decree dated 9‑10‑1983, the suit was decreed respecting the land sold in Khata No.247.

3. Dissatisfied with the decree passed by the learned trial Judge, both the parties filed appeals in the Court of District Judge, Peshawar. Both the appeals, bearing Nos. 141/13 and 148/13 of the year 1983, were heard together by the learned additional District Judge, Peshawar who, by the judgment and decree dated 12‑2‑1985, while accepting the appeal of the pre‑emptor and dismissing the appeal filed by both the vendee‑defendants, decreed the suit in toto. Since before the District Court two appeals had been filed, the vendee's‑defendants filed in this Court two revision petitions against the aforesaid decree passed by the learned appellate Judge.

4. Mr. Samiullah Jan, Advocate appeared on behalf of the petitioners and Mr. Ghulam Naqshband, Advocate appeared on behalf of the respondent. They were heard at length and the record of the case perused with their assistance.

5. The first contention raised by the learned counsel for the petitioners was that the respondent having waived his right to pre‑empt the land could not later institute the pre‑emption suit. The learned counsel in this respect took me through the statement of the pre‑emptor recorded by the learned trial Judge and submitted that since the pre‑emptor had admitted that the payment of the price of, the suit land had been made by the vendee in his presence, it amounted to his participation in the transaction of sale and that being so, he had thereby waived his right to pre‑empt the land. While so contending the learned counsel, however, failed to take note of the portion of the statement of the pre‑emptor in which he has, said that he had taken so many Jirgas to the vendees‑defendants not to purchase the land but they were adamant to purchase it and did purchase it. In presence of this categorical statement and in absence of rebuttal or other proof on the record, the ground of waiver urged by the learned counsel for the petitioners has no substance. Further, this plea had not been specifically taken up in the pleadings of Nazar Muhammad petitioner, nor was it urged at the time of arguments before the learned Courts below: This plea could not, therefore, be permitted to be urged at the revisional stage.

6. The learned counsel for the petitioners next contended that the decree passed by the learned lower appellate Judge in favour of the pre‑emptor-respondent regarding Khata No.248, being erroneous and against law, was not maintainable. He argued that the pre‑emptor having no superior right of pre‑emption against Nazar Muhammad vendee respecting Khata No. 248, could not succeed regarding this Khata even though Nazar Muhammad had transferred the entire purchased land in favour of the subsequent vendee. The learned counsel appearing on behalf of the respondents, however, argued that the original vendee having transferred the suit land in favour of the subsequent vendee (Nasrullah) went out of the contest, which then remained between the pre‑emptor, on the one hand, and the subsequent vendee, on the other. He contended that in such a situation the respective qualifications possessed by the pre‑emptor and the subsequent vendee, who remained in the field, were to be considered by the Court in deciding the pre‑emption suit. He maintained that since in this case the pre‑emptor was a co‑sharer in both the suit Khatas and the subsequent vendee was not, the learned lower appellate Judge rightly decreed the entire claim of the pre‑emptor.

7. I have given my anxious consideration to the aforesaid arguments of the learned counsel for the parties. On first impression the argument put forward by the learned counsel for the respondent appears to be attractive, but when minutely examined, there is no substance in it may here point out that I had, granted one adjournment to both the learned counsel to search law on the subject, but on the next date both the learned counsel reported that they could not lay hand on any authority direct on the point. Since an important question of law had been raised, I, on my own, also looked for the authorities, which could be of some, help in resolving the controversy herein raised.

8. It is undeniable that the respondent‑pre‑emptor is a co‑sharer in both the suit Khatas, and the original vendee (Nazar Muhammad) is also a co‑sharer in suit Khata No.248. It was on this basis that the learned trial Judge had dismissed the suit of the pre-emptor respecting Khata No.248, and had passed decree in his favour regarding Khata No.247. The learned lower appellate Judge, however, passed decree in favour of the pre‑emptor respecting Khata No.248 also on the ground that the original vendee after transferring the suit land in favour of subsequent vendee (Nasrullah) did not remain in the contest and for that reason the qualifications possessed by him could not be used by the subsequent vendee to non‑suit the pre‑emptor. This approach of the learned lower appellate Judge appears to me to be fallacious. The resale by the original vendee in favour of the subsequent vendee had taken place before the institution of the pre‑emption suit. The pre‑emptor, therefore, had a choice either to pre‑empt the first sale or to pre‑empt the subsequent sale. He having elected to go for the first sale and making it a cause of action for his pre‑emption suit could only succeed if he possessed as against the original vendee rights superior to him: It was the very case of the pre‑emptor that the subsequent sale being fictitious and collusive was inoperative against his rights, and' by so urging he was, in fact, claiming relief against the original vendee; totally ignoring for the purpose of his suit the subsequent sale effected in favour of the subsequent vendee. The cause of action remaining the same and the suit of pre‑emption having been instituted and pressed against the original sale, the respective rights of the pre‑emptor and the original vendee were, therefore, to be determined on the basis of the qualifications possessed by such parties. The subsequent vendee, having no right to pre‑empt the land in whose favour the transfer was effected by the original vendee not in recognition of his pre -emptive right but on account of need for money, as so ‑mentioned in the statement of the original vendee, was not to be regarded as substituted for the original vendee while contesting the suit instituted by the pre‑emptor. Transfer in his favour being voluntary, he was successor‑in‑interest of the original vendee and while in such capacity, he could, in my view, while defending the suit, take up all those pleas which were open to the original vendee. In other words, the plea of being a co‑sharer in suit Khata No.248, which was available to the original vendee, could also be raised by the subsequent vendee in order to non‑suit the pre‑emptor with respect to that khata. To support my view I would respectfully refer to the observations of Achhru Ram J. in Mt. Sant Kaur's case (A.I.R.(33) 1946 Lah. 142), a Full Bench authority, which are as under:‑ "However, where the subsequent transferee has lost the means of making use of the coercive machinery of the law to compel the vendee to surrender the original bargain to him, a re‑transfer of the property in the former's favour cannot be looked upon as anything more than a voluntary transfer in the former's favour of such title as he had himself acquired under the original sale. Such transfer has not the effect of substituting the subsequent transferee in place of the vendee in the original bargain. Such a transferee takes the property only subject to the result of the suit. Even if he is impleaded as a defendant in such suit, he cannot be regarded as anything other than a representative‑in‑interest of the original vendee, having no right to defend the suit except on the pleas that were open to such vendee himself. He not being entitled to be regarded as a party to the original sale, which is being pre‑empted, it is not against him but against the original vendee, through and under whom he claims, that the pre‑emptor has in order to succeed, to prove a superior pre‑emptive right. The comparison, even at the date of the decree, has to be between the status of the plaintiff and that of the original vendee and not between that of the plaintiff and the subsequent transferee. " To similar effect are observations of the Supreme Court in Muhammad, Mujtaba's case (1980 S C. M R 7). In my humble view the case of subsequent transferee having no right at all or having right inferior to that of the pre‑emptor is at par with the case of subsequent transferee from the original vendee after the expiry of limitation though having right equal or superior to that of the pre‑emptor. The aforesaid authorities apply with all force to the case of the former as well.

9. Further, in a pre‑emption suit three dates are material; the' date of sale, the date of institution of suit and the date of decree, by the Court. On all these dates, in order to succeed, the pre‑emptor' must possess a right superior to that of the vendee. In other words, if on the date of sale the pre‑emptor does not have a superior right of pre‑emption as against the vendee, then his suit cannot succeed against the original vendee. In such a situation the transfer later effected by .the original vendee in favour of a person having no right or a right inferior to that of the pre‑emptor will not have any effect favourable to the pre‑emptor. For all these reasons, the view taken by the learned lower appellate Judge was erroneous and that taken by the learned trial Judge was correct.

10. The last contention of the learned counsel for the petitioners was that the learned Courts below were wrong in awarding to the petitioners price of the land equal to one found on the basis of five‑yearly average. He 'argued that in arriving at this finding both the learned Courts below failed to read material evidence brought on record to show that Rs.15,000 were fixed in good faith and paid by Nazar Muhammad vendee to the vendor as sale price of the suit land. In order to pursuade me to accept this argument, the learned counsel took me through the documentary as well as the oral evidence brought on record, especially the statement of the pre‑emptor. The learned counsel urged that the finding reached by the learned Courts below on this point suffered from non‑reading of material evidence and was, therefore, not maintainable. The learned counsel for the respondents, however, argued that the concurrent finding of fact reached by the learned Courts below has the backing of the, evidence brought on record and cannot, therefore, be disturbed in revisional jurisdiction of this Court.

11. The perusal of the first sale‑deed executed between the vendor and the original vendee would show that the land in suit had been sold for Rs.15,

000. Before the Sub‑Registrar, however, the payment of Rs. 7,500 was made and regarding the remaining amount it was mentioned in the deed that it had been earlier received by the vendor. While appearing as his own witness, the pre‑emptor, respondent herein, admitted (in cross‑examination) that an amount of Rs. 7,500 had been paid in his presence by the vendee to his brother, the vendor. There is no allegation or statement or evidence on the record to show that this amount had been returned by the vendor to the vendee in order to again receive it before the Sub‑Registrar at the time of the registration of the document of transfer. It, therefore, follows that on two occasions, one before the pre‑emptor, as in his statement, and the other before the Sub‑Registrar, the vendor received an amount of Rs.7,500 from the vendee, thus totalling Rs.15,

000. Further, the pre‑emptor has also admitted in cross‑examination that for the suit land he was prepared to pay Rs.11, 500 as sale consideration to his brother. If that were so, the land in suit could not have been sold by the vendor for an amount less than that. Considering the evidence led by the petitioners‑ vendees and the statement of the pre‑emptor together, I am of the view that Rs.15,000 was the price of the suit land which was fixed in good faith and was actually paid by the vendee Nazar Muhammad to the vendor. The finding reached by the learned Courts below in this regard, being the result of non‑reading of material evidence, is not sustainable and is hereby set aside.

12. For the aforesaid reasons, these revision 'petitions are partially accepted, the decree passed by the learned lower appellate Judge decreeing the entire claim of the respondent‑pre‑emptor is set aside and the decree passed by the learned trial Judge in this regard is restored, with the modification that it shall be deemed to have been passed on payment of Rs.1,290 as sale price of the land decreed in favour of the pre‑emptor, who would deposit this amount in Court, if not already deposited, within three months from today, failing which his entire suit shall stand dismissed. In the circumstances, I shall make no orders as to costs. A.A. /615/P Revisions accepted.