2018 PLP 253 (YLRN)

AMIN-UD-DIN KHAN, J.

Through this civil revision the petitioner/ defendant has challenged the judgment dated 20.12.2011 passed by the learned first appellate court whereby the appeal filed by the respondent/plaintiff was accepted and the judgment/order of rejection of plaint dated 27.04.2011 passed by the learned Civil Judge lst Class, Daska was set aside and case was remanded to the learned trial court.

2. The brief facts are that the plaintiff/respondent on 12.11.2010 filed a suit to pre-empt the sale of land in favour of defendant/petitioner through mutation No.2686 entered on 26.08.2009 and attested on 19.07.2010. The plaintiff/ respondent pleaded the date of knowledge as well as announcement of Talb-e-Muwathibat on 01.11.2010 and a notice was allegedly sent on 02.11.2010 in compliance with Section 13 of the Punjab Pre-emption Act, 1991. On 19.01.2011 the petitioner/defendant filed written statement and stated that he has gifted the suit property to his wife Mst. Uzma through mutation No.2804 entered on 19.07.2010 and attested on 23.07.2010. The petitioner/defendant also moved an application under Order VII, Rule 11 of the C.P.C. for rejection of plaint on the ground that last transaction has not been pre-empted, therefore, suit is bad in law and cannot proceed. The reply was filed. The plaintiff/respondent filed an application under Order VI, Rule 17 of the C.P.C. for permission to amend the plaint in order to insert para. 5-A in the plaint, which is as follows:- It was further prayed that Mst. Uzma be impleaded as defendant No.2.

3. Learned trial court was pleased to accept the application moved under Order VII Rule 11 of the C.P.C. and rejected the plaint and declared that the application for amendment of plaint has become infructuous, therefore, it was disposed of accordingly.

4. Feeling aggrieved by the said judgment, the plaintiff/respondent preferred an appeal before the learned first appellate court, which was accepted on the ground that last sale transaction was in favour of vendee/defendant and immediately the defendant transferred the property in favour of his wife. Learned first appellate court held that it appears to be based upon dishonesty and mala fide to avoid and frustrate the respective right of pre-emption. Learned first appellate court not only accepted the appeal but also accepted the application to amend the plaint regarding impleadment of Mst. Uzma Bibi as defendant and remanded the case to the learned trial court.

5. Learned counsel for the petitioner argues that admittedly long before filing the suit petitioner/defendant transferred the suit property through gift in favour of his wife. The findings of learned appellate court are based upon dishonesty, mala fide and are without any substance. States that to avoid from pre-emption it is the right of vendee to use any device permissible under the law. In this case he has gifted the suit property through a valid attestation of mutation. There is no defect claimed in attestation of mutation of gift in favour of donee, wife of vendee, therefore, while relying upon "Abdul Yameen Khan v. Ashrat Ali Khan" (2004 SCMR 1270), "Din Muhammad v. Abrar Hussain and another" (PLD 2009 Supreme Court 93) and "Javaid Iqbal Rana v. Sarfraz Ahmad and others" (PLD 2014 Lahore 14) argues that the use of device was valid and the findings of learned first appellate court are absolutely against the law and without jurisdiction. Prays for acceptance of instant civil revision.

6. On the other hand, learned counsel for the respondent/plaintiff states that facts are admitted one. Admits that even device is permissible to avoid pre-emption but in this case it is a disguise and that third person can challenge the validity of gift between two parties. Relies upon "Ajmal Khan v. Mst. Gul Zahira Bibi through Legal heirs and 4 others" (2016 MLD 1394), "Musali Khan v. Nazir Ahmad and others" (PLD 1952 Peshawar 1), "Muhammad Irshad and 4 others v. Sardar Khan" (1981 CLC 124) and "Ghulam Hussain through Legal Heirs v. Mst. Miraj Bibi" (1995 MLD 435). Prays for dismissal of the instant civil revision.

7. I have heard the learned counsel for the parties at length and also gone through the record minutely with their able assistance.

8. In the light of judgment of august Supreme Court of Pakistan reported as "Abdul Yameen Khan v. Ashrat Ali Khan" (2004 SCMR 1270) it is clear that when a transfer of land was before the filing of suit for pre-emption, no benefit of principle of lis pendens can be given to the plaintiff. I am clear in my mind that last sale/transfer is to be pre-empted and a sale before the announcement of intention to pre-empt and issuance of notice in compliance of Section 13 of the Punjab Pre-emption Act, 1991, what to state before the filing of suit is to be preempted. I am fortified by the judgment of august Supreme Court of Pakistan reported as "Din Muhammad v. Abrar Hussain and another" (PLD 2009 Supreme Court 93). Further reliance can also be placed upon "Javaid Iqbal Rana v. Sarfraz Ahmad and others" (PLD 2014 Lahore 14).

9. Admittedly the transfer by the vendee-defendant in favour of his wife through mutation of gift of suit land dated 23.07.2010 was much before the announcement of intention to pre-empt, which is dated 01.11.2010, and notice in compliance of Section 13 of the Punjab Pre-emption Act, 1991 was allegedly issued on 02.11.2010, whereas the suit was filed on 12.11.2010. In these circumstances, I am clear in my mind that the transfer by the vendee in favour of his wife through mutation No.2804 was at the most a device to save the property from pre-emption. I am of the considered view that any device saving the transaction from pre-emption can be used but disguise is not permissible under the law and by no stretch of imagination the transaction in favour of his wife through gift of suit property can be said to be disguise when there is no defect in the entry and attestation of mutation and nothing has been allegedly pleaded about any such defect even through the amendment sought to be incorporated in the suit.

10. In this view of the matter, the judgment passed by the learned first appellate court is against the settled principles of law, therefore, while agreeing with the findings recorded by the learned trial court I am constrained to set aside the impugned judgment dated 20.12.2011 passed by the learned first appellate court and confirm the view taken by the learned trial court while accepting the application under Order VII Rule 11 of the C.P.C. vide judgment and decree dated 27.04.2011. ZC/B-5/L Revision allowed.