2001 PLP 1500 (MLD)

Taqi Ahmad Khan for Petitioners. Malik Abdul Wahid for Respondent. Date of hearing: 20th April, 2001. The respondent purchased land measuring 16 Kanals 1 Marla vide registered sale deed dated 6‑10‑1978 for a consideration of Rs.60,

000. The petitioners claiming to be co sharers in the Khata and owners in the state filed a suit on 15‑10‑1979 for possession of suit land by pre‑emption. In the plaint it was stated that the suit land has been purchased for Rs.19,

000. It was also stated that the vendors had sold away 8 Kanals of land and had valid title only in 8 kanals and 1 Marla of land. Prayer however was made for the decree for possession of the suit land on payment of Rs.19,

000. The respondents in their written statement asserted that they had paid Rs.60,000 to the vendor. Issues were framed, evidence of the parties was recorded. The suit was decreed on 18‑2‑1985, but was remanded by the learned Additional District Judge on 11‑7‑1985. After remand an additional issue was framed as to whether the vendor has sold land in excess of his entitlement. The trial Court found the issue in affirmative but held that since the petitioners are to be substituted for the vendees in the sale deed they should pay Rs.60,

000. The suit was decreed accordingly on 1‑4‑1987. First appeal filed by the petitioner was dismissed by the learned Additional District Judge, Sialkot on 14‑1‑1988.

2. The learned counsel for the appellant being aware of the legal position tried to argue that some pre‑partition judgments from Allahabad High Court as also of this Court support his case that he is not bound to pay the price of entire land. Also refers to the case of Labh Singh v. Kher Singh (AIR 1945 Lhr. 11) which is contrary to the said proposition.

3. Learned counsel for the respondent, on the other hand, relies on Mst. Bashiran and 7 others v. Abdul Ghani and 4 others (1995 SCMR 1833) to support the impugned judgment and decree.

4. I have gone through the records appended with this C.R. The matter was settled by the Supreme Court of Pakistan in the case of Malik Hussain and others v. Lala Ram Chand and others (PLD 1970 SC 299). It was held that unless the statute conferring the right of pre‑emption otherwise provides, the pre‑emptor must take over whole bargain that is to say, the pre‑emptor must seek pre‑emption of the whole of the subject‑matter of the sale and pay the entire price paid by the vendees as consideration. This, however, is subject to certain limitations which, at any rate do not include the vendor's defective or want of title. This dictum was further confirmed in the case of Ghulam Muhammad v. Khushi Muhammad (PLD 1973 SC 444) by a five members Bench of the Hon'ble Supreme Court of Pakistan headed by Chief Justice Muhammad Yaqub Ali Khan. Of‑course the same principle has been reaffirmed in Mst. Bashiran and 7 others' case relied by the learned Counsel for the respondent.

5. This revision is accordingly without any force and is dismissed.

6. Learned counsel for the petitioner reports that his client has deposited Rs.30,000 in terms of order dated 14‑2‑1988 of this Court. The petitioner shall now deposit an amount of Rs.30,000 on or before 31‑5‑2001 in the trial court. In case the petitioner fails to make the said deposit on or before the said date, his suit shall stand dismissed with costs through out. At the moment the parties are left to bear their own costs. Q.M.H./M.A.K./M‑550/L Revision dismissed.