2021 PLP 1562 (YLR)

MUHAMMAD SHERAZ KIANI, J.

The supra titled appeal has been filed against the order passed by the learned District Judge Bhimber dated 31.07.2008, whereby the judgment and decree dated 25.06.2007 recorded by learned Civil Judge Samahni has been maintained.

2. Precise facts of the case are that Allah Loke, predecessor in interest of the plaintiffs/respondents, herein, brought a suit for possession on the basis of his alleged right of prior purchase, in respect of the land comprising survey No. 890 Khata No.190/187 Khewat No.36 measuring 28 Kanals 13 Marlas, situated in village Garha Gakhran Tehsil Samahni, against Muhammad Bakhsh and others before the Court of Civil Judge, Samahni, on 05.08.2004, stating therein that the suit land was in the ownership and possession of defendants Nos.4 to 7, who, through attorney, alienated the same in favor of defendants Nos.1 to 3 ,in lieu of Rs.14,25,000/- as consideration amount, however, in order to defeat the right of prior purchase of the plaintiff, the consideration amount has been incorporated in the sale-deed as Rs.25,00,000/-. It was claimed that the actual and market price of the suit land is also Rs.1425000/. He alleged that the plaintiff; pre-emptor was not served with any notice prior to the impugned transaction. It was claimed that the plaintiff is co-sharer in the suit land, neighbor and having common path and the suit land is also adjacent to his own land, thus, he has a preferential right of purchase of the suit land viz a viz to the defendants. A decree for possession on the basis of right of prior purchase was prayed for.

3. The suit was resisted by the defendants Nos. 1 to 3, however, defendants Nos. 4 to 7 submitted cognovits and stated that they have no objection, if the prayed decree is passed in favor of the plaintiff. Defendants Nos.1 to 3, in their written statement, stated that the donees are co-sharers in the suit land and the said land is in the use of the defendants since long, therefore, the suit of the plaintiff is not maintainable. It was claimed that the plaintiff was present there, when, the deal was finalized, therefore, he has abandoned his right of prior purchase by his conduct. The defendants have made huge improvement in the suit land in shape of fruity and other trees etc. and the suit has been filed just to drag the defendants in useless and fruitless litigation, therefore, the same be dismissed with costs. Defendant No.8 also filed separate written statement, wherein, he also craved for dismissal of the suit.

4. Rashid Mehmood, plaintiff also filed a suit in respect of the same land, against Irshad Ahmed Khan and others, vendees, Muhammad Bakhash and others, vendees and also against Allah Loke, the first pre-emptor. It was claimed that the plaintiff is co-sharer in the suit land, therefore, he has a preferential right of purchase viz a viz to the vendees. The vendees have no concern with the suit land, therefore, a decree for possession on the basis of right of prior purchase has been solicited.

5. This suit was also contested by the defendants, by filing separate written statements, wherein, they jointly craved for dismissal of the suit.

6. In the light of the pleadings of the parties, the learned trial Court framed issues and directed the parties to lead their respective evidence and finally, decreed the suit filed on behalf of Allah Loke, plaintiff/respondent, herein, however, dismissed the other suit filed on behalf of Rashid Mehmood, vide judgment and decree dated 25.06.200 Feeling aggrieved and dissatisfied from the above judgment and decree, the plaintiff/appellant, herein, Allah Loke knocked the door of District Judge, Bhimber, by filing an appeal on 19.09.2007, which also met the same fate and stood dismissed with costs, vide Impugned judgment and decree dated 31.07.2008, which is the subject matter of the appeal in hand.

7. Mr. Kamran Tariq, the learned counsel for the appellants, inter alia contended that the principle of sinker does not apply in this case as it has no statutory backing in Azad Jammu and Kashmir and even otherwise, the suit land is divisible and it was transferred in the names of vendees, namely; (1). Muhammad Bakhash as 1/2 and the remaining 1/2 in favor of Muhammad Haneef and Afzal Nadeem, sons of Muhammad Lateef, in consideration of equal amount of Rs.12,50,000/- from each party. In support of his version, the learned counsel referred the statement of witness Tariq Mehmood and contended that the land in dispute was sold, separately to the vendees, which is divisible and therefore, the principle of sinker does not apply. With regard to the judgment of the learned 1st Appellate Court, the learned counsel argued that under Order XX, Rule 5 of the C.P.C., it was enjoined upon the Court below to discuss in detail each and every issue and resolve the same under law, however, the learned Court below miserably failed to proceed in accordance with the legal provisions, hence, the judgment and decree under challenge does not come within definition of a judicial order, therefore, is not maintainable in the eye of law. In support of his submissions, the learned counsel referred the following case law and craved for dismissal of the impugned judgment and decrees of both the Courts below:- (1) PLD 1984 AJK 38, (2) PLD 1978 SC (AJK)156

8. Arguing on behalf of the respondents, Mr. Laeeq Mehmood Aamir, Advocate, strongly opposed the arguments raised on behalf of the appellant and contended that it is not clear from the sale-deed that what portion of the consideration amount was paid by the vendees, therefore, it shall be assumed that the land was transferred in common and consideration was also received by the vendees, jointly, hence, the land in dispute was indivisible and the learned Courts below have rightly applied the principle of sinker, keeping in view the indivisible nature of the disputed land. He claimed that the case in hand is that of concurrent findings, which cannot be gone into, until and unless the necessary ingredients for interference in the concurrent findings co-exist in the case, whereas, the appellant has not pointed out any misreading, non-reading of record/ evidence or any departure from the relevant law, therefore, the impugned concurrent findings don't warrant any interference by this Court. In support of his submissions, the learned counsel referred the following case law:--

1. PLD 1983 SC (AJ&K) 188, 2. 2008 CLC 332,

3. PLD 1982 Lah. 568 and 4. 1987 CLC 815.

9. After hearing the learned counsel for the parties, we have scanned the record of the case, minutely.

10. The main contention of the learned counsel for the appellant is that the principle of sinker does not apply in this case, as it has no statutory backing in Azad Jammu and Kashmir and even otherwise, the suit land is divisible and it was transferred in the names of vendees, namely; Muhammad Bakhash as 1/2 of the suit land and the remaining 1/2 in favor of Muhammad Haneef and Afzal Nadeem, vendees in consideration of equal amount of Rs.12,50,000/- from each party and according to the learned counsel, the statement of witness Tariq Mehmood is very much clear in this regard, therefore, first of all we think it proper to decide; whether, the land is divisible or not?

11. According to the sale-deed dated 25.05.2004, the suit land was sold to the vendees, as 14 kanals 6-1/2 marlas to Muhammad Bakhash, and 14 kanals 6-1/2 marlas to the other vendees; namely; Muhammad Haneef and Afzal Nadeem sons of Muhammad Lateef. The witness of the sale-deed, Tariq Mehmood, in his statement recorded on 12.06.2007 deposed as under:-

12. It is pertinent to mention here that all three vendees/defendants, filed common written statement, in response to the suit of the plaintiff/respondent, herein and in reply to para No.3 of the plaint, stated as under:-

13. A glance perusal of the above reply reveals that even in the common and same written statement, the defendant/ appellants did not take the plea that the land is divisible and that they have purchased the land, separately and have made payment of consideration amount, as such.

14. As far the evidence of Tariq Mehmood, which is strongly relied upon by the learned counsel for the appellants, in concerned. When, the defendant/ appellants herein, have not taken this plea in their pleadings, the evidence beyond the pleadings cannot be taken into consideration. There is plethora of judgments on the point. In a case titled 'Raja Muhammad Saeed Khan v. Sardar Khani Zaman and 11 others, reported as PLD 2007 SC (AJ&K) 63, the Hon'ble Supreme Court of Azad Jammu and Kashmir has observed as under:- "6 . It is well-settled principle of law that the parties cannot go beyond their pleadings. As stated above, nowhere in the plaint it was alleged by the plaintiff that the possession was not transferred to defendants Nos.2 to 12 while in the written statement, filed by the defendant No.2, in reply of para 2 of plaint, it was specifically pleaded by him that the land was exchanged with the plot of appellant/ defendant situate in Rawalpindi and the present appellant/defendant No.1 executed a general power of attorney of said plot in favour of Basharat Iqbal Abbasi, who was attorney of defendants Nos.2 to 12."

15. When, it is established that there is no mention in the written statement that the land was sold, separately and the defendants have also not taken this plea, whilst, filing common statement, then, the evidence of the said Tariq Mehmood, being beyond the pleadings of the party cannot be relied.

16. Now, we would like to attend the question of sinker. As stated above, the defendant/appellants, herein did not take plea of separate purchase of the land or payment of consideration amount, in their common written statement, then, it stands established that the land in dispute was indivisible, and thus, the principle of sinker does attract, completely. Furthermore, under the principle of sinker, when, a pre-emptor having the right of pre-emption, associates with him a person, having no right or inferior right of purchase of the suit land, under the principle of sinker, he disentitles himself from his right of pre-emption. Likewise, if a purchaser, who has also prior right of purchase being co-sharer but associates with himself a stranger in purchase and the land is indivisible and the consideration amount was paid in lump sum without separating or specification of fractional share of each purchaser, in such cases the co-sharer-vendee will also sink with the stranger vendee notwithstanding the fact that their shares in the sale-deed are mentioned, separately. To save from the mischief of the doctrine of sinker, it is necessary for the co-sharer-vendee that along with his separate share, his separate specified amount of consideration must also be mentioned in the deed. Only then, his share in the purchased land shall be considered as divisible the same view was expressed in [AIR 1924 L 46], [AIR 1928 L 784] and [1987 CLC 815] Lahore. The point came under the consideration of the Lahore High Court, in case titled 'Mureed Hussain and another v. Muhammad Shafi and another, reported as [1980 CLC 1753 Lah.], wherein, at 1759 of the report, it has been observed as under:- "13 . In other words, his plea was that the sale in dispute was divisible and, therefore, Muhammad Ramzan would not be hit by the doctrine of sinker. According to this doctrine, if a person possesses one of the qualifications for pre-empting a sale purchases any property together with a person having none of those qualifications or having a qualification inferior to the one possessed by the former, the former also, if the sale is indivisible, sinks to the position of the latter and any person pre-empting the sale on the basis of a qualification superior to the qualification, if any, possessed by the latter, though inferior to that of the former, will take the property in preference to both of them; but if the sale is divisible, the pre-emptor will succeed to the extent of the share of the latter." A division bench of this Court in case of Muhammad Mukhtar Khan 2008 CLC 332 has also expressed the same view. In another case, titled Sultan Muhammad and 3 others v. Nawab Khan and another reported as [PLD 1982 Lahore 568], the proposition has been dealt with in the following manner:- "

2. It was contended by learned counsel for the appellants that the sale in dispute was divisible and, therefore, the suit could succeed only to the extent of the land purchased by Saadat Khan, in this connection, he invited my attention to the sale-deed in which the land purchased by Saadat Khan has been separately shown. There is, however, nothing in the sale-deed indicating as to how Saadat Khan had shared the sale price which has been mentioned in lump sum. The land purchased by Saadat Khan cannot be separated from that of his co-vendees as his precise share in the sale price is not known. The sale in the instant case is, therefore, not divisible. As a result, the vendees who have been found to be tenants would be hit by the doctrine of sinker due to their having associated with them a stranger."

17. In the case in hand, it is an admitted fact that that Muhammad Bakhash is not a co-sharer in the suit land, while the other pre-emptors/ respondents are co-sharers, as mentioned in the revenue record and in the sale-deed, therefore, the other two vendees, inspite of being in possession of the right of prior purchase, stood disentitled from their claim due to joinder and association of a stranger, under the principle of sinker as their share of consideration amount is not specified as separate.

18. Mr. Kamran Tariq, Advocate, the learned counsel for the appellants, drew our attention towards the impugned judgment of the learned 1st Appellate Court and vehemently contended that the judgment of the learned District Judge has not been handed down, in light of Order XX, Rule 5 of the C.P.C., as he has not discussed each and every issued, separately and has rendered a lump sum judgment.

19. The main issues which can be formulated in the following words are:--

1. Whether, the pre-emptors/ respondents herein, had got superior right of purchase?

2. Whether, the principle of sinker applies in this case or not?

20. The judgment under challenge speaks loudly, that these main questions were discussed, comprehensively by the learned 1st. Appellate Court, so, mere mentioning each issue in separate paragraph is not necessary. If all the issues were comprehensively dealt and decided, mere non-mentioning of the number of each issue becomes a technical question. Thus, this argument of the learned counsel for the appellants, being without substance, stands repelled.

21. The other contention of the learned counsel for the appellant that the principle of sinker has no statutory backing and is also not an Islamic principle is also without any substance because the right of pre-emption has also been conferred through the Islamic Law and the basic purpose of the right of pre-emption is that a stranger should not be allowed to enter a locality to disturb the harmony, tranquility, culture and customs of that locality. When, a co-sharer or person having preferential right, joins a stranger with him in the same purchase, he in-fact destroys the very purpose of law and offends against the basic principle of pre-emption. The doctrine of sinker has been followed by the superior Courts for more than a century and the learned counsel could not refer any principle from the injunctions of Islam or Fatwa or any authority that the principle of sinker is not according to tenets of Islam, so this argument of the learned counsel, also being without any substance, stands repelled.

22. In view of the afore-listed reasons, this Court has come to the conclusion, that the learned Courts below have not committed any illegality, irregularity while passing the impugned judgment and decrees nor any misreading or non-reading of record has been pointed out by the learned counsel for the appellants, therefore, in our considered view, the impugned judgment and decrees do not warrant any interference by this Court.

23. The nutshell of the above discussion is that finding no force in the instant appeal, the same is hereby dismissed. SA/42/HC(AJ&K) Appeal dismissed.