2007 PLP 1781 (SCMR)

JAVED IQBAL, J.

This appeal with leave of the Court is directed against judgment, dated 26-4-2000 whereby the revision petition preferred on behalf of respondents/plaintiffs has been accepted.

2. Leave to appeal was granted by means of order, dated 16-5-2005 which is reproduced hereinbelow for ready reference:

"Khursheed son of Meera and the legal heirs of Sher Muhammad, his co-vendee seek leave to appeal against the judgment, dated 14-3-2005 whereby Civil .Revision No.691 of 1985 though fixed for rehearing yet the previous judgment, dated 26-4-2000 having already been passed therein, was not recalled. The ultimate effect was that the pre-emptor stood granted a decree for pre-emption against the petitioner-vendees holding that though the principle of waiver was not attracted to the facts of the case, the principle of sinker was proved and the respondent-vendors had failed to defend that the disputed transaction was divisible one.

2. After hearing the learned counsel at length, we observe that the following questions need thorough consideration:

(a) Whether the non-availability of funds with the prospective pre-emptor at the time of sale transaction and inability to purchase at such time constituted waiver? (b) Whether the plea of sinker was bound to be taken by the pre-emptor in the plaint? (c) Whether the decision of High Court on the question of divisibility in the light of evidence on record is sustainable? (d) What is the effect of the vendees having led evidence on the question of divisibility of the transaction on the non-taking of plea qua sinker by pre-emptor in the plaint? (e) What is the effect of absence of plea of sinker in the plaint when all the Courts, in the light of evidence, have discussed such question and have given decisions thereon?

3. To resolve the aforesaid questions, leave to appeal is granted. Subject to notice, the status quo is directed to be maintained." 2-A. Ch. Muhammad Yaqub Sidhu, learned Advocate Supreme Court entered appearance on behalf of appellants and contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is urged with vehemence that the principle of "sinker" has been misinterpreted and misconstrued which was neither pleaded nor proper opportunity for leading evidence in rebuttal has been afforded. It is also argued that the dictum as laid down in case Abdullah v. Abdul Karim PLD 1968 SC 140 and Sultan Muhammad v. Nawab Khan PLD 1991 SC " 130 could not have been made applicable being distinguishable in the case. It is mentioned time and again that the doctrine of "sinker" has not been mentioned in the .plaint and, therefore, the appellants could not have been knocked out on this score.

3. Mr. Gulzarin Kiani learned Advocate Supreme Court entered appearance for respondents and supported the judgment impugned for the reasons enumerated therein with the further submission that authorities referred to and relied upon by the learned Advocate Supreme Court on behalf of appellants are not relevant and deserve little consideration. It is also pointed out that the principle of "sinker" was never raised before the learned Appellate Court and furthermore no such ground was taken in the memorandum of revision. It is also argued that the sale was .indivisible which .has rightly been appreciated by the learned trial Court, determination whereof has been upheld by the learned revisional Court.

4. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. Let we make it clear at the outset that the principle of "sinker" was never pressed into service. In this regard, we have carefully examined the written statement which is silent about it and even a remote mention has not been made to the principle of "sinker", hence the law laid down in the different authorities as referred by Ch. Muhammad Yaqub Sidhu, learned. Advocate Supreme Court on behalf of appellants would not improve the case of appellants. No such ground has been taken in the memorandum of revision petition rather the entire stress was laid on Issue No.2 i.e: "whether plaintiff is estopped by his conduct"? and Issue No.6 i.e. "whether plaintiff has a superior right of pre-emption"? An indepth scrutiny of the record would reveal that the point qua principle of "sinker" has admittedly been raised in this 13 petition on first occasion and as such it cannot be entertained. In this regard reference can be made of Malik Shier v. Rab Nawaz 1993 SCMR 2035.

5. We have also adverted to the' question of estoppel (Issue No.2) mentioned in the preceding paragraph which has not been decided in accordance with the evidence which has come on record. The conclusion as arrived at by the learned Appellate Court is not in consonance with the evidence which has been misinterpreted and misconstrued. The statement of Allah Rakha (P.W.1) is indicative of the fact that nothing was stated in his examination-in-chief on the basis whereof some inference could have been drawn qua his conduct which was considered as estoppel by the learned Appellate Court. Even in cross-examination nothing was mentioned except that at the relevant time the respondents/ plaintiffs had no amount to purchase the land in question which does not amount to lack of interest and especially when the requisite amount was subsequently arranged and it was also made abundant clear by Allah Rakha (P.W.1) while answering one of the questions during cross-examination in the following words:--

6. On the question of divisibility the learned Advocate Supreme Court was asked pointedly as to whether the respondents/plaintiffs had paid price of the land in question separately to the vendor but no satisfactory answer could be given. It is, however, to be noted that nothing has come on record on the basis whereof it could be inferred that the amount was paid separately to the vendor. The written statement is also silent in this regard and it was never mentioned that the respondents/ plaintiffs had paid the amount separately. This basic fact should have been incorporated in the written statement but no such plea was taken, hence, the evidence led in this regard would have no bearing on merits of the case pursuant to the provisions as contained in Order. VI, rule 4, C.P.C. While discussing the doctrine of "sinker" and divisibility it was held by this Court in case Muhammad Ashraf v. Zahoor Muhammad Sarohi PLD 1995 SC 482 as follows:-- "

5. The doctrine of sinker is a well known doctrine in the law of pre-emption. "where a vendee having an equal or superior right of pre-emption associates a stranger i.e. a person having an inferior right of pre-emption than the pre-emptor, the rule of sinker will apply and the pre-emptor's suit decreed, unless the impugned sale is divisible i.e. it is a sale wherein not only the share of each vendee is specified but the amount paid towards the price by each vendee is also specified". Mir Ahmad v. Attaullah alias Atta Muhammad PLD 1991 SC

210. And a transaction is regarded as indivisible if "the purchase money for a sale is paid in a lump-sum without specification of -the amounts paid by each of the vendees, ... though the shares to be taken by the various vendees may have been specified in the deed. "

7. A similar proposition was dilated upon and decided in case Sultan Muhammad v. Nawab Khan PLD 1991 SC 130 wherein it was held that `the transaction in the present case cannot be held to be divisible; so as to avoid the doctrine of sinker, for the simple reason that the amount paid towards the price has not been separately apportioned to each vendee but has been .shown to have been paid by one of the vendees in .lump sum. Thus, if the transaction is not divisible the Court was right in holding that the first three appellants cannot separately claim a superior right and defeat the right of pre-emption set up by the respondents. Allah Ditta v. Fateh Khan PLD 1970 Lah. 168, Syed Abdul Rashid v. Pakistan PLD 1962 SC 42; Jallu v. Muhammad Khan PLD 1973 SC 347, Mustaqim v. Sher Bahadur PLD 1962 Pesh. 14 SC, 94 PR (1902), Muhammad Ismail v. Karamat Ali PLD 1989 SC 474, Mir Ahmad v. Attaullah Appeal No.10 of 1983 and Muhammad Anwar Khan v. Attaullah Appeal No.20 of 1984. It is worth mentioning "that there can be no presumption as to the divisibility of the transaction merely on the basis of the recital in the deed that the vendees took the property in specified shares if the consideration was mentioned as a lump sum". Abdullah v. Abdul Karim PLD 1968 SC 140.

8. The learned Revisional Court has examined the entire controversy with diligent application of mind on the touchstone of the criterion as mentioned hereinabove and all the contentions raised have been dilated upon and decided in a comprehensive manner vide judgment impugned, relevant portion whereof is reproduced hereinbelow for ready reference:-- "In view of the above discussion I find that the learned Additional District Judge has in fact acted with material irregularity in the exercise of his jurisdiction while passing the impugned judgment and decree. This civil revision is accordingly allowed. The judgment and decree dated 19-10-1985 of learned Additional District Judge is set aside while that of dated 18-10-1982 of the learned trial Court is restored. In case of petitioners have not already deposited the amount of Rs.13,000 they shall deposit the same subject to adjustment of 1/5th or any other amount already deposited in the learned trial Court on or before 31-5-2000. In case the amount is not so deposited the suit of the petitioners shall stand dismissed with costs. For the moment the parties are left to bear their own costs. " The upshot of the above discussion is that no illegality or irregularity has been committed by the learned Revisional Court warranting interference in the judgment impugned which is well-reasoned. The appeal being devoid of merit is dismissed. M.H./K-5/SC Appeal dismissed.