P L D 1984 Peshawar 270 (PLP)

(3) Whether the suit is properly valued for the purposes of court‑fees and jurisdiction ? O.P.P. (4) What is the market‑value of the suit land ? O. P. P. (5) Whether the plaintiff has got superior , right of pre‑emption ? O. P. P. (6) Whether the plaintiff is entitled to the decree as prayed for ? O. P. P. (7) Relief.

3. Pre‑emptor produced Patwari Halqa (P. W. 1) with the revenue records besides his own statement as P. W. 2 in the evidence. On the other hand Muhammad Akram (petitioner) recorded his statement as D. W.

1. There was filed an application by the pre‑emptor to place on file certified copies of public documents as necessitated for the correct determination of issues Nos. 2 and 4 which application was allowed but the documents as such were neither specified nor exhibited.

4. By a judgment and decree of the trial Court, dated 2‑3‑1978, pre emptor (respondent No. l) was granted a decree in respect of Khasra No. 512 on payment of Rs. 253'84 while his suit with respect to Khasra No. 468 was dismissed as Muhammad Akram, the second vendee/transferee of the suit hind arraigned as defendant No. 3 had a right of pre‑emption equal to that of the pre‑emptor with regard to the said Khasra on the basis of contiguity.

5. Pre‑emptor went in appeal before the Additional District Judge who, by his judgment and decree, dated 3‑1‑1979, accepted the appeal holding that there was a collusive arrangement between Yaqoob and Muhammad Akram regarding the cancellation of the original sale transaction and that there was not effected a valid transfer in favour of Muhammad Akram in recognition of his right of pre‑emption and as such the pre‑emptor could not be non suited with regard to Khasra No.

468. He granted a decree to the pre‑emptor for the suit land as a whole.

6. Muhammad Akram has filed the present Civil Revision on grounds that the learned Additional District Judge erred in holding that the transfer of the suit land to the petitioner by a consent decree in Suit No. 79/1 was collusive and fraudulent as neither such allegation was made in. the plaint nor there was claimed and framed an issue on the point, so much so that fraud and collusion were not even being spelt out from the evidence on record. Since as soon, the first vendee transferred the suit land to second vendee (petitioner) having an equal right to that of the pre‑emptor to respect of Khasra No. 468 during the pendency of the suit but before the expiry of the period of limitation, the pre‑emptor would not be entitled to a decree for pre emption with regard to Khasra No. 468 as the pre‑emptor did not continue with the subsisting right of pre‑emption in respect of the said Khasra within the meaning of section 16 of the N.‑W. F. P. Pre‑emption Act, 1950.

7. On the other band it was pleaded that the Court of Additional District Judge was the final authority on point of fact and that this Court was not to upset his finding of fact in a revision. He referred to certain authorities in support that concurrent findings of the Courts below on point of fact need not be upset in revision.

8. Although pre‑emptor's application for additional evidence in certi fied copies of judgment and decree in Suit No.79/1 was accepted but the docu ru01itS as such WIC pot vthibi4d into evidence. Anyhow copies of judgments, decree and the compromise deeds of Files Nos. 46/1 and 79/1 of 1976 are now a part of the file. Their original files were also summoned. It appears that the learned Additional District judge has gone by the heading of the plaint in Suit No. 79/1 vide a declaration has been sought by Muhammad Akram to be the owner in possession of the suit land and that the decree iii Suit No. 46/1 was inoperative qua his rights. In the body of the plaint, he has, nonetheless, stated to have purchased the suit land from Yaqoob, the first vendee, for a price. The compromise deed filed in the Court also reports that the parties had effected a compromise and that Yaqoob had received the entire sale price followed by a joint prayer that there be granted a decree of ownership to Muhammad Akram (petitioner). Again if the petitioner was to seek the cancellation of the consent decree in Suit No. 46/1, he was to implead the vendor of first transaction also a party. in his suit while he has only made Yaqoob, the vendee, a defendant. He further acknowledged in para. 1 of the plant that Yaqoob defendant had acquired the suit land by a consent decree in Suit No. 46/1 from whom he had subsequently purchased. It thus conies to that by Suit No. 79/1of 1976, the consent decree in Suit No. 46/1 was not in fact cancelled but a subsequent transfer was effected thereby to Muhammad Akram, the second vendee (peti tioner) for a price paid and possession obtained. In case the finding of the learned appellate Court about the cancellation of the first sale transaction effected by a consent decree in Suit No. 46/1 is maintained, there shall not arise a question of pre‑emption then It thus appears to be a clear case of misreading of evidence on the part of the learned appellate Court.

9. Pre‑emptor had not pleaded collusion, fraud or facts showing the voidability of the subsequent transaction in his plaint nor there was claimed and framed an issue on the point and still the learned Appellate Court pro ceeded to read the evidence in between the lines and held that the subsequent transaction did not amount to a sale or a transfer in recognition of the right of pre‑emption. Much stress was placed by the learned Appellate Court on a proposition that transfer must be in recognition of pre‑emptive right to non‑suit a pre‑emptor. A reference was made to P L D 1951 Pesh. 76 which holds that section 17 of the N.‑W. F. P. Pre‑emption Act, 1950 recog nizes a transfer by sale only and no other mode P L D 1952 Pesh. I was referred which holds that the transfer of property to third person to defeat pre‑emptor is, no doubt, permissible but it is necessary that the original vendee must wholly and finally part with the property and that the second vendee also become the full owner of the property. It must not be a ficti tious and sham transaction otherwise it will be ineffective qua the pre‑emptor's rights. On the other hand, there was made a reference to P L D 1954 Lah. 541 which holds that it‑ was immaterial if the, second vendee has not specifi cally purchased the land in the exercise of his pre‑emptive right and on having equal or superior right of pre‑emption to the pre‑emptor, he can conveniently non‑suit him. Both the authorities referred to by the Appellate Court are not applicable to the facts of the case. In the first authority, the first vendee has transferred the property by gift which was not recognized by the Court as a valid transfer within the meaning of section 17 of the N.‑W. F. P. Pre emption Act, 1950. In the second authority, there was a specific issue of the fictitiousness of the transaction. Further, the first vendee was a minor whose land had been sold to the second vendee by his de facto guardian which tran saction was declared as void.

10. Section 16 of the N.‑W. F. P. Pre‑emption Act, 1950 speaks of the continuation of the subsisting right of pre‑emption by the pre‑emptor at the time of the decree. . .Explanation added to the section by Act No. VIII of 1972, however, places a limitation on the subsequent transfer to be made to a person having equal‑ or superior right of pre‑emption to that of the pre emptor within a period of limitation provided for a suit for pre‑emption in order to non‑suit the pre‑emptor. Here the original sale was effected by a consent decree, dated 19‑2‑1976 and the subsequent transfer in favour of Muhammad Akram (petitioner) was made on 29‑3‑1976, i.e., well within the period of limitation provided for a suit for pre‑emption. The second vendee has also been brought in as defendant who has an equal right of pre‑emption to that of the pre‑emptor in respect of Khasra No. 468, both being owners of contiguous properties of the said Khasra. Pre‑emptor has thus not continued with a subsisting right of pre‑emption at the time of the decree‑within respect to the said Khasra.

11. In view of the foregoing discussion, the Revision Petition is accepted. The judgment and decree of the Court of Additional District Judge are set aside while the judgment and decree of the Court of Additional Civil Judge, Haripur are hereby restored. Parties are left to bear their own costs. M. Z. M. Revision accepted.