P L D 1975 Lahore 391 (PLP)

The appellants filed a suit for declaration to the effect that they were the owners in possession of the land measuring 5 kanals situated in village Hyderabad, Tehsil Bhakkar, District Mianwali. As a consequential relief a perpetual injunction restraining the defendants from disturbing their possession over the suit land, was prayed for.

2. The facts of the case are that the suit land was alienated by cne Malik Gul Sher in favour of the appellants by means of a mutation effected in their favour on 3rd of September 1950. The predecessor-in interest of the respondents, Malik Amir Sher Ali, pre-empted the sale by filing a suit for possession. This suit was decreed by the learned trial Court on payment of Rs. 1,

250. The case was however, remanded by the learned District Judge in appeal but the judgment and decree earlier awarded in, favour of the respondents was maintained by the learned trial Court on, remand. This judgment and decree was however, modified by the learned lower appellate Court by enhancing the pre-emption money to Rs. 1,

500. It is admitted that after the suit was decreed in favour of Malik Amir Sher Ali on 26th of January 1952, amount of Rs. 1,250 less the 1/5th of the amount already deposited by him was deposited in the Court in compliance with the decree. Later on when the said amount was enhanced to Rs. 1,500 the balance of Rs. 250 was also deposited by him in the Court on 28th of November 1953, in compliance with the judgment and decree of the learned District Judge dated 5th of November 1953.

3. The facts of the case further show that Malik Amir Stier Ali, predecessor-in-interest of the respondents, got a decree in another case against the appellants and on the basis thereof applied for execution in February 1953, and got the amount of Rs. 1,250 deposited by hi n, as pre-emption money attached. The said amount was realised by him on lst of July 1954 under the orders of the executing Court. This decision was however, reversed in appeal filed by the appellants and Moik Amir Sher Ali was directed to redeposit the said amount which direction has not admittedly been complied with, so far. The present suit was filed by tile vendees of the said land who were defendants in the previous suit filed by Malik Amir Sher Ali, for declaration to the effect that they were the owners in possession of the suit land as the pre-emption money had never been deposited by Malik Amir Sher Ali, the plaintiff in the previous suit and the same was withdrawn by him and was never refunded to the Court. The suit was resisted by the respondents. On the basis of the pleadings of the parties, the following issues were framed :- (1) Whether the suit in the present form is not competent ? (2) Whether the plaintiffs are the owners and in possession of the suit land ? (3) Relief. Both the issues were found in favour of the appellants by the learned trial Court on the ground that they were vendees of the land and the pre-emption decree passed in favour of the predecessor-in-interest of the respondents had not been complied with.

4. In appeal the learned District Judge framed another issue to the effect that whether the pre-emptor-decree-holders obtained possession of the land in question in execution of the pre-emption decree and on what date? A report was called for on the basis of the issue as framed above and the finding of the learned trial Court in this behalf was that the decree-holders had not obtained possession of the suit land in execution of the decree. The learned District Judge accepted the appeal preferred by the respondents against the judgment and decree awarded by the learned trial Court in favour of the appellants, mainly on the ground that after the pre-emption money was deposited by the decree-holder in compliance with the decree passed in his favour, the title in respect of the land ins question passed on to him from the date of such payment. He, however, held the suit to be competent as the possession remained with the vendees, the decree passed against them having not been executed.

5. The main question to be seen in this case is as to what is the effect of withdrawal of the pre-emption amount on the suit filed by, and the decree awarded in favour of the predecessor-in-interest of the respondents. It is admitted that the pre-emption amount was deposited within time in compliance with the terms of the decree and the same was got attached and realized by Malik Amir Sher Ali, in another decree passed against the appellants in a different suit after about a month or so, from the date of its deposit. It has been argued that since Malik Amir Sher Ali did not refund the amount to the Court in compliance with the direction of the lower appellate Court, therefore, the pre-emption amount cannot be deemed to have been ever deposited in compliance with the terms of the decree. It is urged that since the plaintiff, Malik Amir Sher Ali, himself withdrew the pre-emption amount though on the basis of a decree in a different suit, therefore, he cannot be held to have complied with the terms of the decree passed in his favour and in that case his suit for pre emption should be deemed to have been dismissed. I am afraid none of the contentions raised above, has any substance.

6. According to law, the moment, the pre-emption money way ..deposited by the predecessor-in-interest of the respondents i.e. the decree holder in the Court in compliance with the terms of the decree, the title ..in the suit land passed onto him. The pre. emptor becomes entitled to the land from the date of payment of the pre-emption money, in accordance with the terms of the decree and mere fact that the amount as such deposited is erroneously attached and taken away by some of the creditors cannot be a basis to refuse him delivery of possession of the suit land. Reference in this respect can be made to Natha Singh and others v. Fateh Khan and another A I R 1933 Lah.

791. In that case the amount deposited as such by the decree-holder was attached and taken away by some of his creditors. .It was held that since the decree holder complied with the terms of the decree, therefore, the mere attachment and realization of the said amount by his creditors could not be a ground for non-suiting him and refusing him delivery of possession of the suit land. In the present case, there is no doubt that the plaintiff himself withdrew the amount under the orders of the executing Court but it was in pursuance of a decree passed in his favour, against the appellants in a different suit. In that way he was creditor of the appellants and he had acted in that capacity alone. It is true that the attachment and realization of the pre-emption amount as such was not warranted by law but the fact remains that this erroneous attachment and realization was by Malik Amir Sher Ali, as creditor of the appellants and not as plaintiff .an the pre-emption suit, filed against them. The same proposition of law -was also enunciated in Sant Singh v. Ghasita and another 21 P R 1902. It was held that as soon as the plaintiff-decree-holder in a pre-emption suit deposited -the pre-emption amount in compliance with the decree passed in his favour, he would be entitled to the land from the date of such payment and the erroneous attachment and the realization of the said amount in execution of another decree would not adversely affect his title in the :land. Similar view has been taken in Thakur Madho Singh and another v. Lieut. James R. R. Skinner and others A I R 1942 Lah.

243. It was held as follows :- "It is well known that under Order XX, rule 14, C. P. C. it is only when payment of the purchase money is made into Court together with the costs if any decreed against the plaintiff that the defendant vendee is required to deliver possession of the property and the title of the pre-emptor is deemed to have accrued from the date of such payment." The above discussion would show that according to law as soon as the pre-emption amount is deposited in compliance with the terms of the .decree, the decree-holder becomes the owner of the suit property .and the vendee ceases to have any interest therein. The erroneous .attachment and as such realization of the pre-emption amount would not adversely affect the title of the plaintiff-decree-holder in the suit land.

7. It has been argued on behalf of the appellants that since the decree -was never executed and the possession of the land was never delivered to the respondents, the appellants have become owners in possession of the suit land because of adverse possession. I am afraid this contention has no force in the circumstances of the case. This has never been the case of the appellants that they have become the owners of the land on account of uninterrupted, continuous adverse possession. Their case throughout has been that since the pre-emption money was withdrawn by the pre decessor in interest of the respondents, therefore. the pre-emption suit would be deemed to have been dismissed and no decree for pre-emption was ever passed against the appellants. This contention is unfounded, as discussed above. However, the effect of uninterrupted and continuous possession of the appellants over the suit land can be examined when an application for execution of the decree is filed by the respondents they would be within their right to raise any objection, allowed by law.

7. For the aforesaid reasons, I don't find any reason to differ with the findings of the learned District Judge on Issue No.

2. The appellants have been rightly held not to be the owners of the suit land as the title therein passed on to the predecessor-in-interest of the respondents with the deposit of the pre-emption money. It would have been entirely a different case if the pre-emption money had been withdrawn by the plaintiff-decree holder during the pendency of the suit. In that case, his suit would have been dismissed under the relevant provision of the Pre-emption Act. In the present case, the pre-emption money was deposited within the prescribed time in compliance with the terms of the decree but the same was however, erroneously attached and realized by the plaintiff, on the basis of another decree in a different suit. It has been argued that since the said amount has not been refunded to the Court so far, therefore, the pre-emption suit should be deemed to have been dismissed. I am afraid this argument has also no force. As discussed above the pre-emption money after having been deposited became the property of the appellants, the vendees-judgment debtors in the previous suit. If the same has not been paid back then the legal remedy available to the appellants in this behalf against the respondents can be availed of, if otherwise permissible at this stage.

8. The result is that the appeal fails and the same is hereby dismissed without any order as to costs. S. A. H. Appeal dismissed.