P L D 1983 Lahore 302 (PLP)

This is a revision petition filed by Mst. Jannat, petitioner, against the appellate order of the District Judge, Muzaffargarh, dated 25-10-1977 dismissing her appeal. Earlier, a Civil Judge, Ist Class, of Kot Addu, by his order dated 21-3-1977, had rejected the execution application of the petitioner for the possession of the whole pre-empted land, but had allowed the same in favour of the petitioner and Mst. Aisha and Ghulam Hyder, present respondents Nos. 3 and 4, on the ground that as the preemption decree was joint, joint possession in favour of all three was alone permissible. ???????????

2. The brief facts of the case are that Mst. Jannat, petitioner, and Mst. Aisha and Ghulam Hayder, respondents Nos. 3 and 4, jointly filed a suit against Sharu and Yar Muhammad, respondents Nos. 1 and 2, for possession through pre-emption of land measuring 38 Kanal 8 Marlas situated in village Dera Din Panah, Tehsil Kot Addu, District Muzaffargarb. In the said suit, the said three plaintiffs. were directed to deposit Rs. 2,000 as zar-a panjum, which was accordingly done. The suit was decreed in favour of the petitioner and respondents Nos. 3 and 4 on payment of Rs. 10,000 by a Civil Judge of Kot Addu on 18-5-1974. The petitioner filed an appeal against the said judgment and decree for the reduction of the price. In the appeal, she impleaded respondents Nos. 1 and 2, who were the joint vendees, and respondents Nos. 3 and 4, who were the joint decree-holders with her, as respondents. During the proceedings, an application was made by respondents Nos. 3 and 4 for being transposed as appellants. Since they were already impleaded as respondents in .the appeal, this application was rejected. On 26-9-1975, the petitioner's appeal was dismissed. The appellate Judge directed the petitioner and respondents Nos. 3 and 4, who were the joint decree-holders, to deposit Rs. 10,000 less 1/5th of the pre-emption money already deposited, before 25-11-1975, failing which, their suit would stand dismissed. On 27-9-1975, respondents Nos. 3 and 4 filed a joint application that as all the pre-emptors had not paid the sale price, their joint decree stood cancelled and they be allowed to withdraw their shares of the zar-a panjum. On 17-10-1975, an order was passed by the Civil Judge for the refund of their share of Rs. 1,333.32 and refund voucher was accordingly prepared and sent to the office of the Accountant-General, Lahore, for pre-audit. Meanwhile, on 24-11-1975, the petitioner deposited the balance sale price of Rs. 8,000 in the trial Court, in compliance with the order of the appellate Judge. On 26-11-1975, respondents Nos. 1 and 2, the vendees, filed an application for the withdrawal of the sale price of Rs. 10,000 deposited by the petitioners in Court, on which the Ahlmad of the Court reported on 29-11-1975 that as sanction had been granted for the refund of Rs. 1,333.32 from the zar-a panjum, only Rs. 8,666.68 remained in their hands for distribution. On 12-12-1975, Mst. Jannat Bibi, filed an execution application and warrant of possession was issued in her favour. In view of the report made by the office on the application relating to the release of the sale price, the petitioner on 26-1-1976 filed another application stating that she had paid the whole of the amount of zar-a panjum and the balance price, in which respondents Nos. 3 and 4 had not contributed, and that they were not entitled to the refund of any portion of the zar-a panjum and that the refund voucher issued be recalled. On z8-1-1976, respondents Nos. 1 and 2, the vendees, filed an application starting that as respondents Nos. 3 and 4 had withdrawn their shares of the zar-a panjum and the full price was not available for payment to them; the warrants for the possession of the pre-empted land issued in favour of the petitioner be withdrawn. Accordingly on 29-1-1976, the attachment warrant issued was ordered to be returned by the Civil Judge. On 9-2-1976, the Civil Judge recorded the statement of Mst, Aisha, respondent No. 3, in which she stated that they had agreed to pay the price of Rs. 10,000 but the petitioner stated that they would appeal for the reduction in the price, but she quietly filed the appeal alone, and though they applied to be impleaded in the appeal their application was dismissed. She admitted that she wanted Rs. 1,100 which she had paid towards zar-e panjum, out of which Rs. 750 was paid by respondent No. 4, and that they had paid no amount of Rs. 8,000 which was the balance price deposited by the petitioner in Court. On the same date, the executing Court recalled the refund voucher earlier issued in favour of respondants Nos. 3 and

4. On 5-4-1976, the statements of the Advocates of respondents Nos. 3 and 4 were recorded, to settle the dispute between the petitioner and respondents Nos. 3 and 4 about payment of zar-a panjum, which was settled on the oath of Haji Khuda Bakhsh, who stated that respondents Nos. 3 and 4 bad also contributed therein. Ghulam Haider, respondent No. 4, in his statement also alluded to the fact that he was prepared to pay the price, as he needed the land, and that he bad been defrauded by the conduct of the petitioner, who had acted against their interest. On 21-3-1,977 the learned counsel for respondents Nos. 3 and 4 made. a statement in Court that his clients did not want to withdraw their shares of the zar-e-panjum and that they wanted to execute the decree for possession. The same day, the learned Civil. Judge,, after hearing the arguments of the parties, rejected the petitioner's prayer for possession of the total suit land and held that the decree stood in favour of all the three pre-emptors and that they were entitled to seek joint possession of the property -in accordance with the decree of the appellate Court. On 24-3-1977, the petitioner filed an application that as. she had paid Rs. 8,667 of the total price, she should be given possession of 86 % of the pre-empted property. which was dismissed by the Civil Judge on 25-3-1977. Being aggrieved by the order dated 21-3-1977, the petitioner preferred an appeal against the same before the District Judge, Muzaffargarh, which was rejected on 25-10-1977. The present revision petition filed by the petitioner is directed against the said order, which is now before me for disposal. .

3. It was urged on behalf of the petitioner that since respondents Nos. 3 and 4 had not paid even a penny of the balance sale price of Rs. 8,000 after the appellate decree and the said amount was paid in-full by the petitioner, the petitioner was entitled to the whole of the possession of the suit property. In the alternative, it was pleaded that as the petitioner had paid Rs. 8,666, as against Rs. 1,333.32 paid by' respondents Nos. 3 and 4, she was entitled to the possession of 86 per cent. of the disputed property. In this connection, learned counsel relied upon Anrup Misir v. Ram Harakh Misir (AIR 1929 All. 953 ).

4. Learned counsel for the respondents Nos. 3 and 4 submitted that as the suit was filed by the petitioner and respondents Nos. 3 and 4 jointly, any payment made by any party would be deemed to be a payment for all and the decree-would enure for the benefit of all and each of the pre-emptors would be entitled to a 1/3rd share, according to the principle laid down in sections 13'and 17 (a) of the Punjab Pre-enlption Act, 1913. As regards the case cited by the learned counsel for the petitioner, the learned counsel for the respondents: submitted that the view of Suleman, J. in the said ruling, that the rights of joint decree-holders as to the shares to which they are entitled in the pre-empted property, have to be determined, in the case of a dispute, in accordance with the payments made by them, was not accepted by the second Judge Boys, J. and that the case actually stood decided on other points.

5. I have heard the arguments of the learned counsel for the petitioner and the respondents and have given my anxious consideration to the same. The question that calls for decision in This petition is whether all the payments made by the petitioner in this case should be treated as enuring for the benefit of the petitioner alone, so as to entitle her to receive possession of the whole of the property in the execution proceedings, or as enuring' for the benefit of all the three pre-emptors, so as to entitle all three to receive possession and, if the latter, whether the petitioner is entitled' to one-third of the property (as one of three joint decree-holders) or to 86 % of the property (in proportion to the payment made by her of the total sale price as compared to that made by her other two colleagues).

6. Before answering the above question, it is necessary to state a few matters about a pre-emption suit. When claiming pre-emption, several pre-emptors may institute separate suits claiming the whole property, in which case all the suits, may be consolidated, their respective. rights and priorities determined according to section 17 of the Punjab Pre-emption Act, 1913, and separate decrees passed in accordance therewith, or they may institute a joint suit for pre-emption and secure a joint decree for possession. Assuming that the petitioner and respondents Nos. 3 and 4 had instituted separate suits, each one of them would have been initially directed to deposit Rs. 2,000 as zar-a panjum and, had all the three suits succeeded and their respective shares determined under clause (e) of section 17 of the Pre-emption Act, each of them would have been granted a decree for possession of 1/3rd of the preempted property and would have been directed to deposit the balance price of Rs. 1333.33 in Court by a particular date and, in the event of one or both of the other pre-emptors failing to deposit his or their respective balance prices by the said date, to deposit his or their 1 /3rd share of the total price by some further date and to secure his or their share of the pre-empted property thereafter. This is in accordance with Order XX, rule 14 (2) (a), C. P. C. In the present case, the petitioner and respondents Nos. 3 and 41 agreed to institute a joint suit for possession through pre-emption. This is not a suit by rival pre-emptors. As such, Order XX, rule 14(2) (a), C. P. C.: does not strictly apply in such a case. In the present joint suit for possession, a joint decree for possession was passed for the whole of the property i favour of all the pre-emptors. Had the share of the joint decree-holders been uneven, as in a case covered by clause (a), (b), (c) or (d) of section 17 of the t Punjab Pre-emption Act; 1913, the judgment and decree would have determined their respective shares, as required by the said section. Assuming such shares were determined, the decree would not have ceased to be a joint decree. Sec Chandra Chur .Deo v. Mst. Shyam Kumari (A I R 1932 Pat. 261) and Sardar Madhavrao v. Narayan Damodar (A I R 1960 Madh. Pra. 66). The object of a joint decree is that any one or more of the joint decree-holders can, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of , all, as opposed to any one applying for his own share alone, leaving the others to take out executions -of their own shares, which is not permitted. The main object, therefore, of a joint suit for possession through. pre-emption is that a number of pre-emptors, who otherwise could place themselves as rival pre-emptors before a Court of law, join together to assert their claim jointly, subject to the provisions of section 17 of the Punjab Pre-emption Act, 1913, and secure a joint decree for possession which any one or more of them can execute on behalf of all. In such a case, if one of the joint preemptors bogs down, the others must be prepared to pay the whole price and pre-empt the whole property. The necessary corollary that must flow from such a position is that all . payments, whether of zar-a panjum or the balance price, deposited by one or more of the joint pre-emptors, in whatever proportion they may choose, must enure for the benefit of all jointly, or in any of the cases covered by clauses (a), (b), (c) or (d) of section 17 of the Punjab Pre-emption Act, 1913, in such proportions in which their rights are determined thereby. If this principle is not adopted a joint suit of pre-emption would run into endless difficulties. However, there could be cases where payment of the zar-a panjam or the balance sale price is accompanied by an application filed by one or more of the pre-emptors declaring that such payment be treated as having been made by him or them in certain stated proportions, which should also be taken into consideration to determine his or their respective shares in the decree to be ultimately passed or when execution is taken out, in which case I do not see any reason why the Court should not, after notice of the said application to the other pre-emptors; accept the same, if there is no objection from anybody. Such an eventuality was foreseen. by Boys; J. in Anrup Misir's case, though its effect on the payment was not considered. I think Boys, J. by suggesting the eventuality, actually laid down one principle governing deviation, that is to say, the circumstances in which payments made in joint suits could be treated as not enuring in favour of the joint decree-holders so as to give them their respective rights as provided by section 17 of the Pre-emption Act, 1913. There could be cases where one of several pre-emptors withdraws at any stage, whether before or after the passing of a decree, leaving the other or others to deposit the whole amount and pre-empt the whole property. Such an eventuality was foreseen by Suleman, J. in Anrup Misir's case, who held that he could not see why a co-plaintiff, who had got a joint decree in his favour, should, inspite of a refusal to contribute towards the payment of the purchase money or even an express desire to withdraw, still be entitled to recover a share of the property. By suggesting the eventuality that a joint pre-emptor who had expressly desired to withdraw, should not be allowed to seek a share in the pre-empted property, where the others had made the full payment, Suleman J. was laying down a correct principle, but to the extent that he said that a refusal to contribute towards the payment, where such refusal was not express and accompanied by the consent of the other or others to pay the whole price, created the same effect, I would humbly submit it was not good law. Without there being an express intimation on the part of a joint pre-emptor refusing to contribute towards the payment, together with the consent of the other or others to pay the balance of the price and take. the whole property, the payment of the price by the other or others, cannot enure in favour of the latter. So also, where there is an express intimation by a pre-emptor of withdrawal from the suit,. unless it is accompanied by the con sent of the other or others to pay the full price, after refund to the withdrawer of any sums of zar-e panjum to which he is entitled, notice should be given to the other or others, so that they may be prepared to deposit the full price, whenever called upon to do so. In Anrup Misir's case one of the two joint pre-emptors who did not contribute to the price, neither intimated in writing 'to the Court that be would not contribute the price, which the other alone would, or expressly intimated that he was withdrawing from the suit. In these circumstances, the view of Suleman, J., that the payment of the price by the other preemptor, enured on his behalf alone and not for both, is not good law. In Anrup Misir's case two learned Judges gave dissenting opinions on this question, but that of Boys, J., on the facts before him, was the correct view.

7. I now turn to the facts of the case in hand. As stated earlier, the petitioner and respondents Nos. 3 and 4 instituted a joint suit for possession. The zar-a panjum of Rs. 2,000 was deposited on behalf of the joint pre emptors, without any attending application to show that the payment was to be treated as being made in certain distinct proportion by each pre-emptor, which was to ultimately affect their rights to the share in the pre-empted property in the decree ultimately to be passed. Likewise, when the balance price of Rs. 8,000. was deposited by the petitioner in the trial Court on 24-I1-1975,, no such application was made. At this stage, the petitioner was not even aware that an application had been made earlier on 27-9-1975 by respondents Nos. 3 and 4 claiming. a refund of their share of zar-a panjum, on which an order had been passed by the trial Court on 17-10-1975 ordering the said refund. Had these facts been known to the petitioner, she would I have deposited Rs. 9333.34 and not Rs. 8,

000. The fact that she deposited the balance price of Rs. 8,000 on 24-11-1975, shows that she was not aware of the respondents' conduct and that she was tendering the balance price on behalf of all the joint preemptors. Both the executing Court and the appellate Court have given concurrent findings of fact that the respondents Nos. 3 and 4 were entitled to withdraw their earlier request for refund of the zar-a panjum before the payment was made to them, which they did and which does not affect their rights. No arguments were addressed by the learned counsel for the petitioner against this finding of fact. In these circumstances, both the lower Courts were justified in treating the decree as a joint decree for possession, in which each of the three pre-emptors had 1/3rd share in the disputed property. . The petitioner also did not appeal against the order of the Civil Judge dated 25-3-1977 rejecting her application for securing 86 % of the pre-empted property in proportion to the payment made by her towards the full sale price. The decisions of both the lower Courts are, therefore, legal and correct and no interference in the revisional jurisdiction is called for.

8. For the foregoing reasons, there being no merit in this petition, the same is dismissed with costs. . Petition dismissed.