P L D 1954 Baghdad﷓ud﷓Jadid 48 (PLP)

ABDUL RASHID, J.‑On 7th July, 1950, Muhammad Bakhsh vendor sold 112 kanals and 9 marlas of agricultural land in Mauza Uttera, Tahsil Bahawalpur to Peer Bakhsh, Nabi Bakhsh and Imam Bakhsh for an ostensible price of Rs. 6,300, the mutation of which was sanctioned in favour of the vendees on that date. On 12th March, 1951 the plaintiffs‑appellants brought a suit for pre‑emption in respect of this land against the vendees in the Court of the Senior Sub‑Judge, Bahawalpur. They alleged in the plaint that they had a preferential right of pre‑emption as against the vendees who were strangers in the Mauza and that the plaintiffs were co‑sharers in the Khata in question. During the pendency of the suit on 25th March 1951, Haji and Karim Bakhsh defendants, who are admittedly shareholders in the Khata, got the suit property in exchange from the first vendees in exercise of their superior right of pre‑emption and resisted the suit of the plaintiffs on this ground. In replication it was urged by the plaintiffs that the subsequent transfer in favour of Haji and Karim Bakhsh by the original vendees, having been made pendente lite, was a sham and fictitious transaction, which could not be called a. re‑sale in their favour and thus could not affect the plaintiffs' right of pre‑emption. The trial Court framed several issues of which the fourth and fifth issues, reproduced below, are material for determination of the question before us in this appeal :‑

4. Whether the transfer by exchange of the property in suit was unreal and fictitious? O. P. on plaintiffs

5. If the above issue is decided against plaintiffs does the transfer in question amount to a sale ? O. P. on defendants. On these issues the Court held that the transfer by exchange in favour of Haji and Karim Bakhsh was a bona fide transaction and that as the land in suit was exchanged in recognition of the pre‑emptive right of the second transferrees Haji and Karim Bakhsh, the transaction was nothing short of a sale in their favour. The Court therefore dismissed the suit of the plaintiffs on the ground that they had failed to prove that their pre‑emptive right was superior to that of Haji and Karim Bakhsh. Against this decision the plaintiffs have come in first appeal to this Court. We have heard at length the arguments of Mr. Sahibyarkhan the learned counsel of the appellants on the first point. His first objection is that according to the contents of the mutation Form No. 586 in favour of the original vendees Haji respondent had expressed his consent which amounted to waiver on his part and that therefore he was subsequently debarred from acquiring the property from the vendees in exercise of his right of pre‑emption. How this objection was not set‑forth in the memorandum of appeal, nor was it taken up at the trial stage. This is quite a newground and we refuse to permit it to be argued at this late stage. The next contention of the learned counsel is that it has not been shown that both the properties which were mutually exchanged were of equal value, nor has it been proved that the original vendees have been placed in actual possession of the other property in Mauza Shergarhwan. It has, however, been established by an overwhelming evidence of Haji and Karim Bakhsh that both the parties have obtained possession of the lands acquired by them respectively in exchange from each other. It is also in evidence that the original vendees had some property of their own in Mauza Shergarhwan where they received an equal area of 28 bighas from Haji and Karim Bakhsh in exchange for the land in suit. It is further clear from the evidence that since the exchange of the land in suit D. Ws. Bhoora and Karim Bakhsh have been cultivating it as tenants of Haji and Karim Bakhsh. No doubt notice Exh. D. C. for filing the suit of pre‑emption in respect of the suit property was given by Haji and Karim Bakhsh at a very early date on 29th July 1950 while the pro perty was transferred to them after about 8 months, but this fact alone does not make the transaction as doubtful or bogus. In addition to the oral evidence there is also the testimony of D. W. Nazar Hussain Patwari to the effect that according to the mutation of exchange, Haji and Karim Bakhsh are in actual possession of the property in suit. He has also produced Khasrass' Girdawari for Kharif 1951 and subsequent harvests, which show that originally Nabi Bakhsh and others the first vendees were in cultivating occupation of the land, but they were afterwards succeeded by Haji and Karim Bakhsh who are tilling the land through their tenants Bhoora and Karim Bakhsh. Thus all the circumstances of the case indicate beyond any doubt that the transaction of exchange is in fact quite genuine and real. On the second point as to whether an exchange pendente lite which has taken place in recognition of the superior right of a pre‑emptor out of Court, there appears to be no direct authority to the effect that it amounts to re‑sale. There is, however, an abundance of authority that where the first vendee daring the pendency of the suit of pre‑emption and within the limitation period sells the suit property to another person having an equal or superior right to the pre‑emptor in recognition of that person's right to pre‑empt, then the suit of the pre‑emptor cannot succeed (See the leading cases on the subject 26 P R 1908 and 7 P R 1910). We however can find no difference in principle as to whether such right is enforced out of Court by means of a sale or by means of an exchange. The only question for consideration in this case is whether the exchange between the parties to the transfers was effected with a view to enforcing the right of Haji and Karim Bakhsh to pre‑empt the property in suit. This is obvious from their evidence on the record. They are admittedly co‑sharers in the Khata in question and on the strength of their superior right of pre‑emption they gave the necessary notice to the original vendees who were strangers in the Mauza. We therefore agree with the finding of the Court below that the exchange in question is tantamount to sale and can defeat the pre emptive right of the plaintiffs. We are further supported in this view of the matter by an analogous case reported as A I R 1944 Lah.

463. In that case Harries C. J. and Mahajan J observed as follows :‑ " There is no distinction between the case of a subsequent purchaser of property from the original vendee and that of a donee or an heir taking property from the same vendee. In both cases if the subsequent acquirer has a superior right to the plaintiff then he can defeat the pre‑emptor's suit on the basis of his own superior qualification ". In fact there is no real distinction between a donation or exchange on the one hand and a re‑sale of the property by the original vendee to a subsequent transferee on the other. We must hold therefore that the Court below was correct in dismissing the suit of the plaintiffs‑appellants. We uphold its decision and dismiss this appeal with costs. ABDUL HAMID, J.‑‑I agree. A. H. Appeal dismissed.