P L D 1996 Lahore 695 (PLP)

This judgment shall dispose of two connected Civil Revisions No.389‑D of 1980, titled ‑Ghulam Yasin v. Shah Nawaz' and No.574‑D of 1980, titled 'Shah Nawaz.v. Ghularn Yasin', as they involve identical, factual and legal issues and arise out of the same suit.

2. Briefly stated facts of the case are that SubWar Nizam Din son of Fazal Din, father of the petitioner, filed a suit to pre‑empt the sale of land measuring 10 Kanals, 14 Marlas situate in the revenue estate of Dudial, Tehsil Talagang, District Attock, sold by Subedar Karam Din, defendant No.2, his real son, vide decree of the Court dated 18‑6‑1971, on the basis of the qualifications of being father, hence, heir of the vendor and co‑sharer in the Khata. During tile pendency of the suit Subedar Nizam Din died and Ghulam Yasin petitioner alone applied for being impleaded as his legal representative in order to continue the suit, which application was allowed as prayed for vide order dated 21‑5‑1974 ''reproduced as under:?

3. The suit after contest was decreed by the learned trial Court vide judgment and decree dated 19‑5‑1975, which was challenged by the defendant-respondent No. I in appeal before the District Court, which was accepted vide remand order dated 18‑7‑1975, with the direction that Subedar Karam Din who is the vendor of the suit land should also be impleaded as a party to the suit either as plaintiff or as a defendant as being an heir of Subedar Nizam Din, the deceased pre‑emptor. Consequently, in post‑remand proceedings he was impleaded as a defendant by the trial Court vide order dated .22‑9‑1975. He admitted the suit and prayed for grant of decree in favour of the plaintiff as prayed for in the written statement filed by him, which is reproduced as under:

4. After recording of evidence and completion' of hearing of the case, learned trial Court decreed the suit in favour of the petitioner regarding whole of the suit land vide judgment and decree dated t‑m‑197(), aggrieved whereof respondent No.1 vendee alone filed regular first appeal in the District Court of Attock. The appeal has partly been accepted by the learned Additional District Judge, Attock, vide judgment and decree dated 5‑12‑1979, holding that Ghulam Yasin pre‑emptor shall be entitled to the extent of one‑half share in the suit land only, as the other half had to go to Subedar Karam Din deceased heir of Subedar Nizam Din, who could not claim the same being a vendor, and as such shall be retained by the vendee, consequently, the suit has been dismissed to that extent. 5.??????????????? Aggrieved of the abovesaid judgment and decree, two cross‑appeals have been filed i.e. one by Ghularn Yasin, petitioner , claiming decree of whole of the suit land and other by Shah Nawaz, respondent No. 1, claiming dismissal of the suit as a whole. ?????

6. Messrs Malik Ataat Hussain and M. Saleem, Advocates, have appeared on behalf of Ghulam Yasin, petitioner, Kh. Muhammad Farooq, Advocate, has appeared on behalf of Shah Nawaz, respondent No. I who is petitioner in the other case. None has appeared on behalf of respondents Nos.2 to 5 in both the cases. ?????

6. Learned counsel for the petitioner has contended that Subedar Karam Din, although a party to the suit, who was impleaded as a defendant therein in pursuance of the remand order passed by the learned lower Appellate Court, had never claimed the suit property as an heir of the deceased pre‑emptor, has rather conceded passing of a decree in favour of the petitioner and that it is Ghularn Yasin, petitioner, alone who pursued the suit as L.R. of Subedar Nizarn Din, deceased pre‑emptor, which he could do under the law inasmuch as it is not necessary that the suit could only have been continued by all the heirs and not by one and as his own right of pre‑emption is also superior qua the vendee, he was entitled to the grant of decree of whole of the land, consequently, the judgment and decree rendered by the learned trial Court is unexceptionable and, hence, has illegally been modified by the learned first Appellate Court allowing the retention of one‑half out of the suit land by the vendee, although findings rendered by the trial Court regarding superiority of right of pre‑emption of the? deceased pre‑emptor and also that of the petitioner qua the vendee have been upheld, therefore, they pray that the judgment and decree to the extent of dismissal of the petitioner's suit passed by the learned first Appellate Court may be set aside and the judgment and decree passed by the learned trial Court may be restored. ??????????????????????????????? 8.??????????????????????????????? KhwaJa Muhammad Farooq, Advocate, learned counsel for the vendee, respondent No. 1, has contended that the deceased pre‑emptor had two heirs namely, Ghulam Yasin. petitioner and Subedar Karam Din, deceased who is represented by the respondents Nos.2 to 5 as his L.Rs. As the pre‑emption suit filed to enforce right of pre‑emption has been inherited by both the brothers in equal shares and Subedar Karam Din being the vendor being ineligible to claim his share in the land in dispute as a co‑pre‑emptor, suit to the extent of his share has rightly been dismissed as such the impugned judgment and decree ?is unexceptionable and is not liable to be interfered with in this civil revision. None has appeared to contest these appeals on behalf of respondents Nos.2 to

5. No other point has been argued.

9. After hearing of arguments in this case, the judgment was reserved but for the purpose of clarifying the position as to whether the respondents Nos.2 to 5 insist on getting a joint decree in their favour, the appeal was fixed for re?hearing on 6‑6‑1996 but on that date except Mr. Ataat Hussain Awan, Advocate none else appeared. It was explained by the above‑referred learned counsel that the respondents Nos.2 to 5 do not claim or insist on passing of decree in their favour and in fact have conceded the passing of a decree in favour of the petitioner regarding the suit land in toto as is clear from the written statement filed by the Subedar Karam Din, their predecessor‑in‑interest. 10. 1 have considered the arguments addressed at the bar and have perused the record. It is not denied that Subedar Nizam Din, deceased pre‑emptor who is father of the petitioner and Subedar Karam Din predecessor‑in‑interest of Nos. 2 to 5 was possessed of superior pre‑emptive right qua respondent No. I both on account of relationship and also being a co‑sharer in tile Khata. It is also admitted fact that Subedar Karam Din deceased was the vendor and, therefore, there is no cavil with the proposition that he could not have claimed any share in the land in question on the basis of his own independent superior right of pre‑emption or inherited by him on account of the death of his father. The only heir of the pre‑emptor who had moved for continuing with the suit as L.R. of the deceased pre‑emptor is the petitioner who has superior pre‑emptive right qua the vendee in his own right and is also on the basis of the right inherited by him from his father who was admittedly possessed of superior pre‑emptive right qua the vendee. It is now well ‑established a legal proposition that each heir pre‑emptor has an independent right of pre‑emption and can exercise the said right without associating with him persons possessed of equal or even superior pre‑emptive right. It is also well‑established a legal proposition that if there are more than one pre‑emptors and one of them is not entitled to exercise the right of pre‑emption due to some disability, decree can be passed in favour of remaining pre‑emptor or pre‑emptors, regarding the suit land in toto by directing the deletion of name/names of those who are not entitled to claim the superior pre‑emptive right except in those cases where the said pre?emptors insist on getting a joint decree with the other pre‑emptors whose superior pre‑emptive right is established on record. Refer case Mehr Allah Ditta and another v. Muhammad Ali and another PLD 1972 SC 59 wherein at pages 65 to 67 of the report, it has been held as under:‑‑ "This view did not find favour with the Punjab Chief Court in the leading Punjab case on the subject, namely, Sharaf and another v. Peer Bakhsh and another 83 PR 1893. It was held in that case that such a suit is maintainable by the pre‑emptor alone if the name of the stranger is struck off 'from the record. In this connection, Sir Meredyth PlowdenS.J. observed as under:‑‑‑ We are unable to assent to the view of the High Court, or to the reasoning upon which it is founded. If A has a right of pre‑emption on a sale by B to C, and under the impression that D has an equal right with himself, joins him as co? plaintiff, and it appears that D has no right, upon what principle can, it be held that A's right is forfeited ? That analogy, between a pre‑emptor as purchaser joining a stranger with him in the purchase, and a pre‑emptor as plaintiff joining with him a stranger as co‑plaintiff, is not so complete as necessarily to entail 'the same consequences. In the first case, the pre‑emptor purchases in violation of the rules regulation pre‑emption, and his act is incapable of? being undone. In the second, the error is in the form of the claim made in Court, and can be remedied without infringing the right of any person. The question in the former case may be one of the law of pre? emption, or of justice, equity and good conscience; in the later, it is a question of the law of procedure in enforcing by suit a right of pre? emption. It may be quite just to say to pre‑emptor, you alone had a preferential right to purchase, but you and a stranger together had not; and yet quite unjust to say to him, you have preferential right of pre?emption to sue the defendant, but you have forfeited it by the erroneous belief that your co‑plaintiff had an equal right. We have in the present instance to deal with the latter case only, and not with the former. There is, in our opinion, no reason why the plaintiff, Makhan, should not maintain this suit alone, after the name of Sharaf has been struck out of the plaint; and we know no rule either of? pre‑emption, or of procedure which deprives the plaintiff Makhan of his ' right of pre? emption, or requires that his suit should be dismissed because Sharafwas erroneously joined in the plaint as a co‑plaintiff. We direct that the name of Sharaf be struck out of the plaint, and that the appeal in the Court of the Divisional Judge be heard on its merits as an appeal by Makhan lone. This decision was followed in Punjab in the cases of Khawas Khan v. Rasul Khan and another 29 PR 1894, Hira Lal and others v. Ibrahim and others 102 PR 1894, Mst. Mangli and another v. Sobba Singh and another 218 PWR 1913, Allah Ditta and others v. Qaim Din 60 IC 692, and Raja and others v. Hussain and others. In the last? ntioned case, the entire case‑law was reviewed by Changez, J. It was held in that case that the right of a pre‑emptor‑plaintiff is not lost if in a Suit to enforce his rights he joins with him a stranger. If such plaintiff,? ?however, insisted in getting the relief jointly, then it was obvious no relief could be granted at all to them. But the question assumes an entirely different complexion if the so‑called stranger‑plaintiff is willing to withdraw from the suit at any stage of the proceedings. The mistake in joining as a co‑plaintiff is procedural and is remediable by amendment under Order 1, rule 10, C.P.C., even at appeal stage. It was further held that under sub‑clause (2) of Order 1, rule 10, C.P.C., the Court has power to strike out or add parties at any stage of the proceedings with or without an application."

11. In the case in hand, Subedar Karam Din has never come forward to become a party to the suit as an L.R. of the deceased pre‑emptor. He wag impleaded as a respondent in pursuance of the remand order passed in the suit by the learned lower Appellate Court. Even thereafter he neither contested the suit nor claimed right or interest in the suit land, at any stage of the suit i.e. trial appeal as well as revisional proceedings before this Court up to the stage of re: hearing of these petitions. Their predecessor‑in‑interest has conceded the grant of decree of the suit land in favour of the petitioner disbelieve the statement of the learned counsel for the petitioner that the respondents Nos.2. to 5 neither claim any right in the suit land nor do they insist on passing of a joint decree for pre‑emption in their favour. Therefore, the suit being continued by Ghularn Yasin alone who is possessed of superior pre‑emptive right of his own and also as being the heir of Subedar Nizam Din, the deceased pre‑emptor, decree could have been granted in his favour regarding the whole of the suit land and merely because there is another heir of the deceased pre‑emptor who is not entitled to claim a superior pre‑emptive right will not result in retention of the suit land by the vendee who at any rate being not possessed of superior pre‑emptive right, is to be substituted by a pre‑emptor who is admittedly possessed of superior pre‑emptive right qua him. The impugned judgment and decree rendered by the lower Appellate Court, hence, is not maintainable to the extent of dismissal of the suit to the extent of one‑half share in the suit land.???????????

12. Resultantly, I accept Civil Revision No.389‑D of 1980 set aside the judgment and decree rendered by the learned First Appellate Court to the extent of dismissal of the suit filed by the petitioner to the extent of one‑half share of the suit land and restore the decree passed by the learned trial Court in relation C to the suit land as a whole. Civil Revision No.574‑D of 1980 filed by the respondent No. I is, consequently, dismissed. Both the parties shall bear their own costs. A. A. /G‑ 14 Order accordingly