P L D 1962 (W (PLP)

MUHAMMAD DAUD KHAN, J.

Zafar Ali Khan and his five brothers purchased the equity of redemption of 2 Kanals 15 Marlas of land specified in the plaint situated in Sukari Zabita Khan by a sale-deed dated the 8th of January 1955, from Mst. Bukhari, widow of Mir Hassan, its owner, for Rs. 1,

100. This sale was given effect to by the attestation of mutation No. 3509 on the 18th of February 1955. Muhammad Hassan, plaintiff-petitioner, pre-empted the sale on the ground of his being a co-sharer in the khata of the land sold. The vendees resisted, the claim on the ground that the transaction was not pre-emptible by virtue of section 5 (c) of the N.-W. F. P. Pre-emption Act, 1950, as they had purchased this land for the construction of houses as none of the parties had a house or a vacant site in the village in an area of more than one Kanal. This contention did not find favour with the trial Judge, as according to him, Safdar Ali Khan, one of the vendees, was the owner of agricultural land in the area of the same village, and since the other vendees had joined him in the transaction, therefore, they had lost the right on the principle of "sinker" as contemplated by section 19 of the Pre-emption Act. In appeals the Senior Sub-Judge took a different view. He found that the ownership of agricultural land was no bar to the purchase of vacant site or agricultural land for the construction of a house, and therefore, Safdar Ali Khan having another agri cultural land in the village would not disentitle him to the benefit of section 5 (c) of the Pre-emption Act. The learned Senior Sub Judge, therefore, accepted the appeal, and dismissed the plaintiff's suit.

2. The plaintiff lodged a Second Civil Appeal in this Court which is being treated as a revision petition by virtue of section 59 (4) of Ordinance XLIV of 1962. The only point for determination in this case is, whether the ownership of four Kanals of agricultural land in the village deprived, Safdar Ali Khan, co-vendee, under the law, to the benefit of section 5 (c) of the Pre-emption Act of 1950, and therefore, the other co-vendees were also deprived of this benefit by virtue of the doctrine of "sinker". Section 5 (c) of the Pre-emption Act lays down the following rule:- " (c) agricultural land or village immovable property, consist ing of an area measuring not more than two Kanals purchased by a resident of the village in which such land is situated, where he neither owns a house nor a vacant site measuring more than one Kanal, for constructing a house for his own occupa tion." An agricultural land or village immovable property consisting of an area measuring not more than two Kanals could be purchased by a resident of the village provided the vendee neither owned a house nor a vacant site xr,casuring more than one Kanal. If the vendee owned a house or a vacant site measuring more than one Kanal, then the sale of agricultural land of village immovable property in his favour would be pre-emptible. In the instant case, agricultural land in the outskirt of Bannu City situated in the area of village Sukari Zabita Khan has been purchased. What the plaintiff-pre-emptor could establish was that one of the vendees, namely, Safdar Ali Khan, owned four Kanals of agricultural land in the village. If the Legislature intended that the ownership of agricultural land should be a bar then it should have specifically mentioned it as it had done in the case of property which a person was competent to buy for the construc tion of a house on it. Agricultural land or village immovable property is the property described which can be purchased for the construction of a house, but he cannot purchase this property if he is the owner of a vacant site or a house, and not that he was owner of agricultural land. A vacant site can include agri cultural land, but that site would be either in the abadi of the village, or on the outskirts of the village, where a house could be constructed. The term "vacant site" used in this subsection is wide enough to include agricultural land, even if that is not situated on the outskirts of the village. It is only the intention of the vendee which is material in this case. If the vendee, who is the resident of the village, had purchased agricultural land at a considerable distance from the village for the construction of a house, then that sale is also not pre-emptible under this subsection. The learned Senior Sub-Judge, therefore, has rightly interpreted section 5 (c) of the Pre-emption Act of 1950.

3. Counsel for the petitioner referred to Order XLI, rule 33, Civil Procedure Code, and urged that since Safdar Ali Khan, one of -the vendees, had not preferred an appeal against the decree of the learned trial Judge in the Court of the Senior Sub-Judge, therefore, the trial Court's decree with respect to his share of the land purchased should be considered to be final. Rule 33 of Order XLI, C. P. C. runs thus "The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power-may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: Provided .." Basing his contention on Rule 33 he has urged that the exercise of these powers is discretionary, and is normally exercised only in cases in which the failure to exercise them would lead to impossible, contradictory, and unworkable orders. The learned counsel has cited Sher Muhammad Nawab Khan v. Mst. Aimna Bibi and others ,( A I R 1937 Pesh, 69) and Bulaqi Mal v. Abdul Karim (A I R 1933 Lah. 682). Order XLI, rule 33, C. P. C. and the: authorities mentioned above are not applicable to the facts of the present case. As a matter of fact Rule 33 is not at all applicable to the circumstances of this case. Rule 4 of Order XLI, C. P. C. is the appropriate rule which lays down the. following :- "Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the' defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be."

4. Counsel for the respondents relied on West Pakistan and another v. Sir Nawab Muhammad Farid Khan (P L D 1960 Pesh. 111) ; Official Assignee, Madras v. Ansouranmal (20 I C 901) and Mst. Jagdei and another v. Sampat Dube (A I R 1937 All. 796). In the last ruling it has been laid down that "there is a distinction between Order XLI, Rule 4, C. P. C. and Order XLI, rule 33, C. P. C. Rule 33 applies to a case where the appeal is as to a part only of the decree, while Rule 4 applies to a case where the appeal is from the whole decree". It is further laid down therein that "Order XLI, Rule 4 is based on two considerations, firstly to give the appellate Court full power to do justice to all parties whether before it or not, and secondly, to prevent contradictory decisions in the matter in the same suit. In order to apply Rule 4, it is essential that the decree appealed from should have proceeded on a ground common to all the plaintiffs or defendants and the whole case is gone into the Appellate Court at the instance of the parties representing all the necessary contentions in the case".

5. In the instant case, all the six vendees jointly purchase the land in suit and the decree of the learned trial Court had pro ceeded on a ground common to all the defendants and the whole case had gone to the Appellate Court at the instance of the defendants representing all the necessary contentions in the case. Counsel for the respondents has also relied on Ganga Parshad v. Mst. Hardhi and others (A I R 1932 All. 32), wherein it has been laid down that "a Court has ample power to substitute for the decree granted in favour of the respondents such decree as ought to have been granted in their favour and the exercise of this power is not con fined to the case of an appeal by the respondents."

6. He has further cited Naresh Chandra Basu v. Hayder Sheikh Khan and others (A I R 1929 Cal. 28), wherein it has been laid down that "although there is no appeal or cross-objection by the respondents, it is still open to the Appellate Court to make a decree which would be proper in the circumstances of the case."

7. The petitioner's counsel has failed to show how the dis cretion, by the appellate Court in dismissing the plaintiff's suit against the defendant-vendees, has been wrongly exercised. Safdar Ali Khan, the sixth vendee, was arrayed as respondent in the first appellate Court along with the appellants and the remaining five vendees preferred the appeal claiming the dismissal of the suit with respect to the entire claim of the plaintiff. Order XLI, Rule 4, C. P. C. is, therefore, applicable to the circumstances of the present case, and the first Appellate Court was competent to grant the full relief, notwithstanding that one of the vendees had not been arrayed as the appellant. This technical objection, therefore, raised by the petitioner's counsel also does not hold any water.

8. As a result, the revision petition is dismissed with costs. K. B. A./A. H. Petition dismissed.