P L D 1987 Lahore 133 (PLP)

A sale of 2 Kanals 12 Marlas of agricultural land, out of a joint Khata, situated in village Ikhlasgarh, Tehsil and District Gujrat was made in favour of the petitioner by means of a registered sale-deed dated 7-8-1979 for an ostensible sale price of Rs. 25,

000. It was sued out on 1fi-3-1980 by the respondent to be pre-empted on the grounds of his being a collateral heir of the vendor and also being a so-sharer in the land in suit. Vendee denied his claim and resisted the suit on a number of pleas including those of estoppel, collusion and limitation. Necessary issues were settled and on the basis of evidence led by the parties learned trial Judge decreed the suit on 9-3-1985 by repelling the objections.

2. An appeal there against filed by the vendee having been dismissed by the learned District Judge on 9-12-1986 by arming the decree of the trial Court, he has now come up to this Court on revision.

3. Learned counsel contends that the trial Court's findings under Issues Nos. 2 to 4 had been duly assailed in the memorandum of appeal blow but there is no finding there about recorded by the learned District Judge presumably because he had passed his judgment quite sometime after the hearing of arguments. There is no substance in this submission. because it is recorded in the appellate judgment that no other issue had) been argued. Learned counsel did not himself represent the petitioner! in the appeal below and has not furnished the affidavit of the concerned counsel. Hence, there is no reason to think that the said issues may in fact have been argued there. However, I have heard his arguments on those issues. It is argued that the suit of the respondent was barred by time in so far as it had been filed more than one year after the petitioner's entry into possession of the land in suit and that the preemptor was acting Benami and was also estopped to file the suit on account of his conduct.

4. I do not find any merit in either of the above contentions. As observed already, sale in this case was made by means of a registered deed dated 7-8-1979 and relates to a fractional share of a joint Khata of holding which, as has been found in Wali Muhammad v. Dost Muhammad and another? 1986 C L C 1220, cannot be a tangible property to become capable of being physically possessed. Hence, the suit filed on 16-3-1980, within one year of the date of registration of the sale-deed, is undoubtedly within time under Article 10 of the Limitation Act. To sustain the plea of estoppel learned counsel has invited attention to the statements of the two witnesses produced by the petitioner and also to his own statement made as D. W. 3 wherein an assertion has been made to the mere effect that the plaintiff was asked to purchase the land but he declined. Neither of these witnesses has either mentioned the sale price nor asserted even that the alleged offer to the plaintiff may have been made for purchase at any stated price. It does not require any elaborate argument to show that a prospective pre-emptor cannot be expected to act in vacuum and before considering an offer of sale, he has a right to be apprised of the price which he may have to pay for the bargain. Without his being sod informed of the price, he cannot be expected to have made a conscious choice to reject the proposal for sale to him. I have had the occasion to examine this question from different angles in Hakam Ali v. Fazla 1986 C L C 1183, and conclusion to the above effect was reached. Hence, the said assertion made in the evidence of the defendant is not sufficient to sustain the plea of estoppel which has been rightly repelled by the trial Court. As regards the plea of Benami, the case of the petitioner is that this suit has been filed for the benefit of some Muhammad Yaqoob who is bearing the expenses of litigation. The mere fact that another person is bearing the expenses of litigation cannot suffice for a conclusion that the suit itself is Benami. There is no reason why a pre-emptor may not be able to have financial support of his relatives or well-wishers, like any other plaintiff. To this effect is Rehmat Ali and another v. Ghulam Nabi (1). In Lal Din -v. Allah Ditta and others (2), it was held that plea of Benami can be sustained only upon the proof of the existence of some arrangement between the pre-emptor and another person whereunder it may be possible for that other person to become vested with the decree to be ultimately passed so that he and not the plaintiff himself would be the real owner of the property. Such a suggestion has not even been made by either the vendee or his witnesses, therefore, the objection with regard to the suit being Benami fails as being only untenable. In the end, learned counsel has half-heartedly contended also that the vendee-petitioner was entitled to be reimbursed with regard to the expenses incurred by him in securing the sale. Even though a plea on the point was taken in the written statement, yet, neither was an issue on their point claimed in the trial Court nor has any evidence been led to prove the details of expenditure so much so that the petitioner has not made any statement at all on the point in his evidence as D. W.

3. Therefore, even this submission cannot be sustained.

6. Decree passed in favour of the respondent and upheld in the appeal below is unexceptionable on the record. There does not emerge any case for exercise of revisional jurisdiction. Hence, dismissed in limine. A. A./H-1/L???? Revision dismissed. (1) 1986 C L C 2176?? (2) P L D 1967 Lah. 703