1985 PLP 1015 (MLD)

"(1) Whether the plaintiffs have waived their right of pre‑emption by their words and conduct ? O.P.D. (2) Whether the suit is under valued for the purposes of court‑fee and jurisdiction ? If so, what is .the correct valuation and what is its effect upon the suit ? O.P.D. (3) Whether the plaintiffs have got a superior right of pre‑emption qua the vendee? O.P.P. (4) Whether a sum of Rs.1,00,000 was fixed in good faith as sale price and actually paid to .the vendor ? O.P.P. (5) If issue No.4 is not proved in affirmative then what was the, market value of the suit land at the time of sale ? O.P.P. (6) Relief."

5. Issues Nos.1 and 2 were found against the defendant‑vendee while Nos. 3, 4 and 5 were decided irr his favour resulting in dismissal of the suit.

6. Counsel contended that the evidence relating to the parties' pedigree was misread by the trial Court inasmuch as it being a common case that they were collaterals having descended from the same ancestor, the appellants were related at least to the vendor Fatima Bibi comparatively in a nearer degree excluding altogether the vendee respondent qua her share.

7. There is considerable substance in the plea. From the pleadings, it transpires that both the parties claimed a common descent. What needed to be determined was as to who was nearer to the vendors and who was more remote. It was an accepted fact that the vendor Fatima Bibi was the daughter of Ali Baksh, whose grandsons were the appellants /pre‑emptors. In other words, the said vendor was their Phuphi (paternal‑aunt). This is also borne out by the pedigree‑table A P.1 coupled with the statements of the witnesses. The vendee Ehsanullah on his own showing is related to her from a degree more remote. He shall obviously be excluded vis‑a‑vis 1/3rd sold by her.

8. The case in regard to the remaining 2/3rds of the land sold by Ghulam Zohra is d bit different. It is again a common question between the parties that they are collaterals even to her but this time the vendee Ehsanullah is posed a degree nearer to her than the appellants/ pre‑emptors. To be more specific, he is collateral to her in the their degree from the common ancestor whereas the appellants are in the fourth. They shall be excluded in succession to the corresponding 2/3rd of the land sold by Mst. Ghulam Zohra and their suit shall stand dismissed about that portion.

9. The findings on the point of actual payment as also the market value were not assailed before us. The payment of Rs.1,00,000 as price for the land is confirmed.

10. As a result, the appeal is partially accepted to the extent of 1/3rd share sold by Mst. Fatima Bibi subject to the appellants paying the proportionate amount of Rs.33,333 which we had orally directed‑to, be deposited by or before 15‑1‑1986. In the short order, dated 1‑12‑1985, we had indicated that a separate order meaning thereby the present judgment. would follow. However, the file was put up by the Reader before one of us (Akhtar Hassan, J.) on 29‑3‑1986 as it had been mislaid by him. The terminal date for the deposit of pre‑emption amount had already expired and, therefore, in order to allow a fresh opportunity to make the necessary deposit, we called upon the parties to show cause against it. This was done particularly in view of the fact that the judgment had yet not been signed by one of us (C.A. Rehman

11. Ch. Muhammad Muzammal Khan, learned counsel for the respondents does not have much serious objection to fixing a fresh date for the deposit of pre‑emption amount especially when the judgment has yet to be signed. Consequently, we allow the appellants to pay the proportionate amount of Rs.33,333 by or before ,23‑4‑1986, failing which their suit even in regard to the aforesaid 1/3rd portion shall stand dismissed.

12. The parties are left to bear their own costs. S.A. Partly accepted.