P L D 1987 Peshawar 21 (PLP)

3. Defendants Nos. 1 and 2 filed their joint written statement while defendant No. 3 contested the suit in his separate written statement in which various pleas were raised giving rise to the framing of the following issues. (1) Whether the suit is bad for misjoinder of necessary parties? O. P. D. (2) Whether the suit is "Benami"? O P. D. (3) Whether the plaintiff is estopped to site? O. P. D. (4) Whether sale consideration was fixed in good faith and actually paid? O. P. D. (5) What is the market value? (6) Whether the plaintiff has a superior right of pre‑emption? O. P. P. (7) Whether the transaction by the other defendant in favour of defendant No. 3 is "Benami"? O. P. P'. (8) Whether the plaintiff is entitled to the decree prayed for? (9) Relief? On behalf of the plaintiff Patwari Halqa appeared as P. W. 1 who placed on file copies from Jamabandis of the suit land and of the land owned by the plaintiff. These are Exh. P. W. 1/1 and Exh. P. W. 1/3. Exh. 1/4 is a 'copy of `Shijrah Qistwar' while Exh. 1/5 is the five years average of sale transactions according to which the market value of the suit land comes to Rs: 19,798.69. He deposed that defendant No. 3 was co‑sharer in the suit land prior to the sale made in his favour. Plaintiff appeared as his own witness and close his evidence. Guldar Khan defendant No.3. also appeared as own witness and did not produce any other evidence.

3. The learned trial Judge while giving his finding on the issue pertain ing to market value determined it at Rs. 19,788.69 after issue No. 4 was decided against the vendee. However, while giving his finding on issue No. 6 pertaining to superior right of pre‑emption of the plaintiff it was held that though plaintiff has got his land contiguous to the suit Khasra numbers, the suit property having been ultimately transferred in favour of defendant No. 3 on. 16‑5‑1982, i.e. within the period of one year of the original sale, plaintiff had been left with no subsisting superior right of pre‑emption under section 16 of the N.W. F. P. Pre‑emption Act., hence dismissed his suit vide his. judgment and order dated 17‑1‑1984. Appeal filed by the plaintiff against the judgment and order was dismissed by the District Judge on 15‑7‑1984.

4. The learned counsel for the petitioner contended that the Courts below misread the evidence on the record and misapplied the law on the subject to the facts of the case. It was further contended that the authority on which reliance has been placed by the learned Courts below namely Muhammad Shuja and 4 others v. Sher Afzal Khan and 2 others (P L D 1970 Pesh. 136), was not attracted to the facts of the present case. It was next contended that neither re‑sale of the suit land is proved by the first vendee in favour of his vendor nor there is any evidence of sale in favour of the subsequent transferee viz. defendant No.

3. It was contended that even otherwise if the sale is proved to have taken place neither the plaintiff's suit could be defeated by re‑sale to the vendor by a further sale in favour of defendant No. 3 as the transfers so made would not be considered to have been made by the vendee in recognition of superior right of pre‑emption of defendant No.

3. In support of his contention the learned counsel placed reliance on Mst. Fateh Bibi'v. Ahmad Khan and 6 others (P L D 1971 Lah. 171), Mir Ahmad Khan v. Gul Ayub Khan and 3 others (P L D 1985 Pesh.3), Syed Zafar Ali Shah v. Fazal Shah and 2 others (1983 C L C 1816) and Muhammad Khan and another v. Zir Mir Khan and 2 others (1981 C L C 1.29).

5. On the other hand the learned counsel for respondent No. 3 argued that the re‑sale made in favour of the original vendor and thereafter its transfer in favour of defendant No. 3 having been made within the period of one year, and When it has been proved that defendant No. 3 has got equal, or superior right of pre‑emption as against the plaintiffpre-emptor, it was rightly held by the Courts below that the plaintiff had failed to retain his superior right of pre‑emption within the meaning section l0.of the. N.W. F. P. Pre‑emption Act.

6. To appreciate the contention raised it may be pointed out that apart from the pleading of the parties and the copies of registered sale deeds and the revenue record placed on file there is no other evidence to prove re‑sale of the suit land to the original vendor and of its further' sale in favour of defendant No. 3. plantiff has in his original plaint challenged the re‑sale in favour of the vendor to be fictitious and of no legal effect on his right of pre‑emption. Thereafter, in his amended plaint, in which defendant No. 3 was impleaded as a party, the plaintiff challenged the sale made in his favour as 'Benami' and fictitious. Though these transfers were seriously challenged and an issue No. ‑7 was specially framed to this effect excepting the solitary statement of defendant No. 3, no other evidence has been led in the case in proof of the subsequent transfers made after the sale in question. In this case plaintiff has pre‑empted the first sale made in favour of defendant No. I within the statutory period o one year. Under the law re‑sale of the land to the original vendor can be set up as a plea for defeating the plaintiff suit for possession under section 16 of the N.W. F. P. Pre‑emption Act as transfer made in hi favour can neither be termed to have been made in recognition of hi superior right of pre‑emption nor the sale made by such transferee in favour of, defendant No. 3 would be deemed to be the transfer by the vendee in favour of a person having equal or superior right to that of the plaintiff pre‑emptor. In the absence of direct link or contract of sale between the original vendee and' defendant No. 3 the provision of la referred to above would not be attracted, if the plaintiff is proved to have a superior right of pre‑emption against the original vendee.

7. For the reason stated above and for the additional reason that no evidence has been led by the defendants in proof of the transactions of re‑sale to the vendor and of transfer in favour of defendant No. 3, the finding of the Courts below on issue No. 6, which is based on no evidence and misapplied of law are unsustainable. Consequently this revision petition e is accepted, the judgment and decree of both the Courts below are set aside and the plaintiff's suit is decreed as prayed for in the plaint on payment of Rs. 19,788.69. The parties are, however, left to bear their own costs, Plaintiff is directed to deposit the pre‑emption money if not already in deposit within the month failing which his suit shall stands dismissed. A. A. 494/F Revision accepted.