1984 PLP 789 (SCMR)

MUHAMMAD HALEEM, ACTG. C. J.‑Leave to appeal was granted to consider, firstly, whether in the wake of the concession of the counsel for Munsif Khan that he had not pre‑empted the sale in favour of the appellant which transaction was challenged as `fraudulent' and fictitious', could the Courts below decree his suit for possession through pre‑emption; and secondly, that upon the dismissal of the appeal of Zain Khan on his failure to deposit the pre‑emption money did Mst. Zarina Begum improve her status by becoming a co‑sharer in respect of the half share of the property so as to defeat the competing claim of Munsif Khan. One Kamal Khan, the husband of Hakam Jan was the owner of 23 Kanals out of 99 Kanals and 13 Marlas comprised in several Khasra numbers more particularly described in the plaint situate in the area of Mauz Sultanpur, Tehsil Abbottabad. This land was under mortgage. Kamal Khan transferred the equity of redemption to his wife in lieu of her dower‑debt through a registered deed dated the 14th of July, 1960. This transaction was mutated and attested on the 28th of August, 1960. Thereafter 41st. Hakam Jan sold the equity of redemption to the appellant which transaction was mutated and duly attested on the 23rd of December, 1960. Munsif Khan and Zain Khan pre‑empted the sale of the equity of re demption in favour of Hakam Jan by separate suits. They also joined the appellant and pleaded that the sale in her favour was `fraudulent' and `fictitious'. But the relief was claimed as against Hakam Jan as well as against the present appellant. These suits were consolidated and the trial Court while dismissing them held that the transfer in favour of Hakam Jan was in lieu of her dower‑debt and hence the transaction was not pre -emptible. In appeal the District Judge while holding that the transfer in favour of Hakam Jan was in lieu of a dower‑debt yet gave a joint decree in favour of the pre‑emptors holding that the second transaction was pre‑emptible. In second appeal, the High Court dismissed the suit of Zain Khan as he failed to deposit 1/5th of the sale price in the trial Court as ordered within the due date, but upheld the decree in favor of Munsif Khan. The Letters Patent Bench also concurred with this judgment. Here it may be noted that in both the suits the stands of the pre‑emptors was that the second sale was in reality a sham transaction and what was sought to be pre‑empted was the transfer in favour of Hakam Jan as being an out right sale in her favour. On this aspect of the matter, the Court below held against the pre‑emptors, nonetheless the first appellate Court and so also the High Court and the Letters Patent Bench despite the stand of the pre‑emptors held the second sale to be pre‑emptible. We fail to see how such a view could be taken when the suitors did not regard this transac tion as a genuine transaction, and, accordingly, they should have been non suited once the first transaction was held not to be a sale. Added to it was the concession of the counsel for Munsif Khan, who apparently on the basis of the stand taken by Munsif Khan in his pleadings gave a statement that the second transaction was not intended to be pre‑empted. This being a concession on the merits of the case it should have been given due effect, but the Courts below failed to take it into consideration. On this ground the appeal succeeds. Accordingly, it is not necessary to deal with the second point. In the result, we would allow the appeal and set aside the impugned orders, but with no order as to costs. S. Q. Appeal allowed.