1980 PLP 1036 (CLC)

2. The appellants, who are vendees of the land in dispute, resiste the suit inter alia on the ground that the respondents had participated in the negotiation regarding the sale of the said land and had thus waive their right of pre-emption. Therefore, one of the issues framed by to learned Civil Judge was to the following effect :- "Are the plaintiffs estopped by their conduct from filing the preset suit ? O. P. D." The appellants led evidence on the above issue and the respondents, also examined one of them in rebuttal. The learned Civil Judge took notice of the evidence of the parties and then recorded the following finding :- "It is a well established principle of law that the right to pre-emp accrues after the sale and not prior thereto. In the instant case it has been admitted by the vendor, D. W. 1 that he did not give notice in writing to the plaintiffs before sale of to suit land. There is nothing on the record to show that the plaintiffs are witnesses to the sale-deed, Exh. P. 2 or that the had appeared before the Sub-Registrar at the time of registration of the suit land. Thus it is clear that the plaintiffs have not taken any active part in the completion of the sale of the land in dispute. If it be admitted that the plaintiffs were pre sent on the spot at the time of negotiations of sale between the parties, even then they are not estopped by their conduct fro filing the suit simply because right to pre-emption has accrue to the plaintiffs after the completion of the sale of the suit land. Thus, I hold that the plaintiffs are not estopped b their conduct from filing the suit and decide issue No. accordingly against the defendant." When the matter went up in appeal before the learned District Judge, h expressed the view that the appellants had not been able to substantiate their plea of estoppel. He did not comment on the reasoning of the learned trial Court that the right to pre-empt the disputed sale accrue to the respondents after the sale in question and, therefore, they were no estopped from filing the suit even if they were present at the time when the sale was negotiated.

3. Learned counsel for the appellants contended that since the learned Civil Judge had decided the issue of estoppel on wrong premises namely, that the right of pre-emption can be waived after the sale and no before the sale, his finding was not sustainable. As regards the learner District Judge, it was urged by the learned counsel that he had not considered the entire evidence of the parties before deciding the issue and therefore, his finding also was not in order. In reply, learned counsel for the respondents submitted that the two Courts below had recorded concurrent finding on the issue of estoppel, which involved a question of fact, and, therefore, no exception could be taken to that finding in second appeal. Learned counsel for the respondents, however, did not share the view taken by the learned Civil Judge that the right of pre-emption could not be waived before the actual sale had taken place.

4. It can be easily gathered from the aforesaid observations of the learned trial Court that while expressing the above view regarding the stage at which aright of pre-emption can be waived he has also recorded a finding to the effect that the respondents had "not taken any active part in the completion of the sale." The plea of the appellants that the res pondents had participated in the negotiations did not find favour with the learned District Judge also. In the circumstances, the finding of the two Courts below on the issue under consideration can be treated as a con current finding of fact.

5. Even if the aforesaid finding is not taken to be a concurrent one, the conclusion reached by the learned District Judge is not open to any valid exception. The appellants examined four witnesses on the issue of estoppel. They are Muhammad Shafi vendor (D. W. 1), Dooni (D. W. 2), Nizam Din (D. W. 3) and Muhammad Ishaq appellant (D. W. 4). There are, however, material contradictions in their statements. According to Muhammad Shafi when the respondents were asked to have the disputed land they said that they could not purchase it because they had no funds. Dooni said that when the offer was made to the respondent, they stated that they did not want to get the land. He did not make any mention of the lack of funds. Nizam Din and Muhammad Ishaq came out with a different version and said that some of the respondents had arranged the bargain, The witnesses of the appellants also do not agree as to which of the respondents had acted as above. According to Muhammad Shafi and Dooni all the respondents had declined to get the land but Nizam Din and Muhammad Ishaq did not say any thing regarding Bashir res pondents. Admittedly, Dooni was inimically disposed of towards the respondents on account of some criminal proceedings going on between him and the respondents. In view of these discrepancies in the appellants' evidence the learned District Judge was justified in holding that they had failed to substantiate the plea of estoppel. The case law is well-settle on the point that very strong and cogent evidence is needed to non-suit a pre-emptor on the ground of estoppel. Since the evidence produced by the appellants is not of that character I am in agreement with the learned District Judge that they had not been able to prove the issue under examination.

5. Another contention raised by the learned counsel for the appellants was that one of the vendees, namely, Munshi died during the pendency of the suit but his legal representatives were not brought on the record. Instead, while filing an amended plaint with a view to refixing the valuation of the suit the name of Munshi was also omitted from the list of plaintiffs with the result that the decree passed by the learned trial Court was in favour of the plaintiffs other than Munshi. While disposing of the first appeal before him the learned District Judge had considered the effect of the omission of the name of Munshi from the list of plaintiffs and expressed the view that the omission was inconsequential. In the decree prepared by him also, however, there was no mention of Munshi. Learned counsel for the appellants contended that the effect of the omission of the name of Munshi from the decrees of the two Courts below was that the suit would be deemed to have been dismissed to the extent of the land of his share and, therefore, the appellants would be entitled to retain that much land.

6. On the other hand, learned counsel for the respondents maintain ed that in view of the provisions of Order XXII, rule 3, of the Code of Civil Procedure as amended by the Law Reforms Ordinance 1972, it was not necessary to implead the legal heirs of Munshi and, therefore, the failure of the other plaintiffs to bring on record his legal representatives was of no effect. According to him the decree passed in the present case would be for the beneath of 411 the plaintiffs including the legal heirs of Munshi.

7. It is not disputed that Munshi died after the coming into force' of the said Ordinance. Therefore, under the existing provisions of rule 3 of Order XXII of the Code of Civil Procedure, it was not necessary to implead his legal representatives and the suit could be proceeded with and decided as if he had not died. This is exactly what the trial Court had done but as the surviving plaintiffs had, while filing the amended plaint, dropped the name of Munshi from the array of plaintiffs the trial Court did not mention his name in the decree passed in the suit. The learned District Judge did not advert to the said omission of the lower Court although it was held by him that the absence of the name of Munshi from the amended plaint and the failure of the other plaintiffs to bring on record his legal representatives was of no consequence. In view of what has been laid down in rule 3 of Order XXII, I agree with the learned District Judge that the failure of the surviving plaintiffs to implead the legal heirs of Munshi is immaterial. It is not the case of the appel lants that if the suit had been decided before the demise of Munshi, the judgment passed by the trial Court in favour of the surviving plaintiffs could not have been passed in his favour. Therefore, the judgment pro nounced by the trial Court shall, notwithstanding the death of Munshi, enure for all the plaintiffs in the suit, including Munshi, and it shall have the same force and effect as if it had been pronounced before his death had taken place. In this view of the matter, the name of Munshi should have figured in the decrees passed by the two Courts below. Theirs omission to mention his name as one of the decree-holders is a clerical C error. I would, therefore, direct the learned Civil Judge as well as the' learned District Judge to correct that error in exercise of powers vesting in them under section 152 of the Code of Civil Procedure.

8. In view of what has gone above, I am unable to agree with the learned counsel for the appellants that the decree passed in favour of the respondents would not take effect to the extent of the share of Munshi and that his share would be retained by the appellants.

9. There is no merit in this appeal. It is, therefore, dismissed with costs. Appeal dismissed.