1989 PLP 1085 (CLC)

(4) Whether the plaintiff has got superior right of pre‑emption? O. P. P. (5) Whether ostensible sale amount of Rs.1,25,000. was fixed in good faith or actually paid? (6) For non‑proof of issue No.5 what was the market value of the suit land at the time of its sale? O.P. Parties. (6‑A) Whether the plaintiff is estopped to bring this suit? O.P.D. (6‑B) Whether Allah Ditta was the real purchaser of the suit land and Fida Hussain was Benami Dar, if so its effect? O.P.D. (7) Relief.".

2. The plaintiff‑respondent appeared as PW1 and examined Khizar Hayat vendor as PW

2. On the other hand appellant examined Abdul Hafeez DW 1, scribe of Ex. Dl and D2, Faqir Hussain, marginal witness of Ex: D3 (sale deed) as D.W 2, Abdul Aziz scribe of Ex: D4 and D5 as DW 3, Ibrahim and Muhammad Bakhsh, marginal witnesses of Ex: D4 and D5 respectively. Aziz Begum appeared as DW 6 while Wahab as DW

7. The trial Court after hearing the arguments proceeded to dismiss the suit vide judgment and decree dated 25‑10‑1987. The respondent assailed this decision through an appeal in the Court of District Judge. This appeal was accepted by Additional District Judge, Khanewal vide judgment and decree dated 5‑12‑1987. This necessitated present appeal by the appellant‑vendee.

3. The appeal was admitted to regular hearing and notice was issued to the respondent, who has entered appearance through an Advocate and contested the appeal.

4. I have heard the learned counsel for the parties and gone through the record and the precedent cases. The learned counsel for the appellant in support of the appeal raised the following points:‑ Firstly, that the learned lower Court was wrong to decree the suit after 31‑7‑1986, in view of the dictum of Honourable Supreme Court in the cases of Sardar Ali v . Muhammad Ali PLD 1988 S.C. 287 and Ghulam Qadir v. Nawab Din P L D 1988 S.C. 701; Secondly, that it was proved to the hilt through agreement Ex: D4, receipt Ex: D5, application Ex: D1 and notice Ex: D2 that the real owner of the land was Allah Ditta, grandfather of the appellant, who was just a Benami. It is added that the funds for the purchase of the property were admittedly supplied by said Allah Ditta and appellant has not independent source. The reliance was placed on Sankatha ‑Prasad v. Mst. Rukmani and others (A.I.R. 1939 Allahabad 81); Thirdly, that the suit was time barred as originally the appellant was not sued through guardian‑ad‑litem, therefore, the plaint was amended on 11‑3‑1980. This way the suit will be deemed to have been filed on this date. It is, therefore, urged that the suit was time barred and liable to be dismissed. Fourthly, that the respondent has waived his right as he was associated in the sale transaction, therefore, he lost superior right, if any.

5. On the other hand, the learned counsel for the respondent has argued that the principles enunciated by Honourable Supreme Court in cases of Sardar Ali and Ghulam Qadir are not applicable for the simple reason that the suit was decreed on 9‑10‑1982. It is argued that it is clear from the judgments of the Supreme Court that such suits were saved and were to be decided in accordance with the old law. Learned counsel for the respondent in this behalf has referred to Question No.7 as framed by his Lordship Mr. Justice Muhammad Afzal 7,ullah in Sardar Ali's case and its answer. In reply to the second argument it was argued that appellant in order to succeed was not only to prove that real owner was Allah Ditta but it was also to be proved that said Allah Ditta had a superior right of pre‑emption than that of the plaintiff. The precedent case relied on by the learned counsel, if closely looked at goes against the appellant. It is concluded that the suit was within time and time of institution will remain the same and that there was no waiver on the part of the plaintiff.

6. I have given my anxious considerations to the arguments of the learned counsel for the appellant and to the counter arguments of the learned counsel for the respondent. Now I proceed to deal with the same one by one. The first contention is that the lower appellate Court erred in law while decreeing the suit after 31‑7‑1986. The learned counsel for the respondent rightly pointed out that since a decree has earlier been passed in this suit, therefore, the lower appellate Court rightly decreed the suit. The learned counsel for the respondent in this behalf has referred to Question No.7, which was answered in positive. The question reads as under: "Whether a plaintiff having obtained a decree before 31st July, 1986, a higher forum remanded the case for fresh decision, will be entitled to seek its restoration regardless of the fact whether the matter is pending before the trial or any higher forum". The case of the respondent is fully covered by the question. It is, therefore, clear that the judgment in Sardar All's case supports the respondent rather than the appellant. There is no merit in this plea.

7. Next it was argued that real vendee was Allah Ditta and the appellant was just a Benami. I have given my anxious considerations to the contentions of the learned counsel for the parties. It seems that the appellant was not conscious of the fact that he is not only to prove that the real vendee was Allah Ditta but was also to prove that said Allah Ditta had a superior right of pre‑emption that than of the plaintiff. The learned counsel for the appellant in this behalf has referred to the judgment in the case of Sankatha Prasad. Even if this judgment is gone into the point becomes crystal clear. The relevant portion of the judgment of the learned Single Judge reads as under: "I therefore hold that it is open to benamidar to resist a suit for pre‑emption on the plea that he is a mere benamidar and that the real purchaser is a co-sharer against whom the plaintiff has not a preferential right of pre‑emption." An appeal was taken against this judgment and decree of the learned Single Judge. The same was upheld and appeal dismissed. The relevant portion of the judgment of the Division Bench reads as under:‑ "Upon a consideration of these authorities and on general principles, we are of the opinion that the pre‑emption against a vendee who is a benamidar for a person who has a prior right of pre‑emption to the plaintiff does not lie. It is the duty of the Court in such a suit to discover who is the real purchaser, i.e. who takes the proprietary and beneficial interest under the sale. As pointed out in the‑decision of the Privy Council in A.I.R. 1918 PC 140, the benamidar may have no beneficial interest in the property or business standing in his name but he represents in fact the real owner and is in the legal position of such representative. In the present suit the vendees under the sale deed represent the real owner, the real owner is a co‑sharer against whom the plaintiff has no right of pre‑emption. The plaintiff's suit therefore must fail". In the present case, it is true that the appellant has proved that he was just a Benami, the deal was struck by Allah Ditta and payment made by him from his own sources. The appellant should not have stopped. He should have further proved that said Allah Ditta had C superior right than that of the plaintiff. This having been not done, therefore the question who is the real owner loses all significance because in both cases the right of the plaintiff was superior.

8. The rationale behind this principle of law as enunciated by the Courts was in case the real vendee had a superior right, then sale should be protected while the appellant was under the misapprehension that the principle of law is that where the vendee is a Benami owner then transaction is saved from a suit for pre‑emption. The appellant was working under grave misapprehension of Law.

9. It was also added that since Allah Ditta was not impleaded as a party, therefore, finding cannot be recorded against him. This argument is again misconceived because Allah Ditta the alleged real', vendee was not only aware of the pre‑emption suit but at one time, he was defending the same though on behalf of the appellant. The', appellant is also to be deemed to have resisted the suit for his benefit. Therefore, his presence was not essential. It was his owns out‑look whether to become a party to the suit or not. In this behalf) I can safely refer to the judgment in the case of Gur Narayan v Sheolal Singh (1918 I.L.R 46 P.C 566). The relevant portion reads' as under:‑ "So long therefore, as a benamidar transaction does not contravene the provisions of the law the Courts are bound to give effect. As already observed, the benamidar has no beneficial interest in the property or business that stands in his name, he represents, in fact, the real owner, and so far as their relative legal position is concerned he is a mere trustee for him. Their Lordships find it difficult to understand why in such circumstances an action cannot be maintained in the name of the benamidar in respect of the property although the beneficial owner is no party to it. The bulk of judicial opinion in India is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata. With this their Lordships concur. It is open to the latter to apply to be ` joined in the action; but whether he is made a party or not, a proceeding by or against his representative in its ultimate result is fully binding on him. In case of a contest between an alleged benamidar and an alleged real owner, other considerations arise with which their Lordships are not concerned in the present case."

10. Now I take up the third point that the suit was time‑barred. It is admitted that the suit was brought within one year of the sale but it is argued that since the appellant was sued without next friend therefore, the suit was not properly framed. The plaint was I amended on 11‑3‑80 and appellant sued through next friend. According to the learned counsel for the appellant the date of institution in the circumstances will be i1‑3‑80 and not 27‑10‑1979. The plea is misconceived. The date of institution remained the same and unaltered.

11. Finally, it was argued that the respondent has waived his right as he was associated in the sale transaction. I have gone through the entire evidence and find nothing on record to substantiate the argument of the learned counsel. The respondent in order to prove the plea of waiver was to produce evidence of unimpeachable character. Both the Courts have rightly decided this issue against him. It is concluded by concurrent findings of fact which do not call for any interference. It is needless to add here that issue No.6‑A was not pressed before the trial Court. The result is that I do not find any merit in this appeal. The same is dismissed with no order as to costs. A. A. /F‑115/L Appeal dismissed.