P L D 1972 Peshawar 122 (PLP)

"As regards the point of sinker. I am of the opinion that the defendants have not proved by any cogent evidence that the defendant No. 2 had transferred his share in the suit land to defendant No. 1 thus to remove the disability of defendant No. 1 in respect of section 19 of the N. W. F. P. Pre‑emption Act. I, therefore, hold that the defendant No. 1 cannot be helped in any manner. According to the doctrine of sinker he loses his rights of pre‑emption. The rights of the plaintiff to pre‑empt the sale of the suit land thus become superior to that of Muhammad Abbas defendant. The finding of the learned trial Judge on this issue is erroneous." The learned appellate Court consequently accepted the appeal, set aside the judgment and decree passed by the trial Judge and decreed the plaintiff's suit for possession by pre‑emption of the suit land on payment of Rs. 748.44.

3. Muhammad Abbas defendant‑appellant has come up on second appeal. Section 17 of the Evidence Act lays t "An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned." Section 18 of the Evidence Act provides that statements made by a party to the proceedings are admissions. Section 31 of the Evidence Act provides "Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provi sions hereinafter contained." Section 31 deals with the effect of admissions with regard to their conclusiveness. It means that admissions whether written or oral are not conclusive of the matter admitted; although they are good evidence against the party making them. A party to a suit is bound by pleadings which he delivered in the suit. In Sri Kanchi Kamakoti Peetathi Pathi Avergal Sikkudaivar Swami Avergal Jagathguru Sri Sankaracharya Swamigal v. Manalisarayan han Mudaliar ((1919) 2 I C 876), it has been held "An admission by a party is of considerable weight as evidence against him, and may, if unexplained, be even decisive." In the case, in hand Muhammad Abbas defendant‑appellant and Fazal Din respondent in their joint written statement have admit ted that the suit land was sold to them by Miskin, defendant No. 3 that defendant No. 2 later on, prior to the institution of the suit, alienated the land in favour of defendant‑appellant. An affidavit is also attached to the joint written statement. At the trial Fazal Din defendant (D. W. 2) has testified that he has transferred his share in the suit land to Abbas defendant. He has admitted the contents of the written statement and affidavit as correct. Muhammad Abbas defendant‑appellant has also testified that he and Fazal Din purchase the suit land from Miskin, and that he is the sole owner of the suit land because Fazal Din has sold his share to him (Muhammad Abbas), as admitted by him in the written statement. Both Muhammad Abbas and Fazal Din have tried to explain that the transfer of his share by Fazal Din in the suit land in favour of Muhammad Abbas took place during the pendency of the suit. Thus both agreed that Fazal Din has transferred his share in the suit land in favour of Muhammad Abbas; but their explanation that this transfer took place during the pendency of the suit is not convincing and sufficient to rebut their admission that the transfer took place before the institution of the suit. The admissions of the appellant and Fazal Din in their written statement are thus of considerable weight and are decisive evidence against them for the purposes of the present suit.

4. The provisions of sections 16, 17 and 19 of the North West Frontier Province Pre‑emption Act with regard to the question of superior right of pre‑emption of the plaintiff-respondent and the doctrine of sinker, if any, need consideration. Section 16 reads "No decree for pre‑emption shall be passed in favour of any person unless he has a subsisting right of pre‑emption at the time of the decree, but where a decree for pre‑emption has been passed in favour of plaintiff, whether by a Court of first instance or of appeal, the right of such plaintiff, shall not be affected by any transfer or loss of his interest occurring after the date of such decree. 17 (1) No suit for pre‑emption shall lie where the purchaser has, prior to the institution of such snit, transferred the property in dispute to a person, having a right of pre‑emption equal or superior to that of the plaintiff. (2) Any improvement, otherwise than through inheritance or succession, made in status of vendee‑defendant after the institution of suit for pre‑emption shall not affect the right of the pre‑emptor‑plaintiff in such suit." In Abdul Majid Khan v. Shahzada Asif Jah (P L D 1970 Pesh. 37), it has been held that subsection (2) to section 17 should have formed part of section 16 of the North‑West Frontier Province Pre‑emption Act. Section 19 runs thus: "Where the purchaser having equal or superior right to the pre‑emptor joins with him a person having no right or having right inferior to the pre‑emptor, the purchaser loses him preferential right." "The actual acquisition by a pre‑emptor is made not at the time when the property is sold to another, nor at the time when the suit is instituted but at the time when the decree is made. The preferential right that a person possesses at the time of the sale and retains till the institution of the suit merely entitles him to move the Court in his favour, but in order to succeed he must retain this position up to the time of obtaining the decree." Further, "a pre‑emptor in order to succeed in his claim must not only possess a superior right at the time of the sale but must retain the superiority on the basis of which he claims to pre‑empt also at the stage o1 the suit and the stage of the decree." (See Hayat Bakhsh v. Marsabdar Khan and others A I R 1935 Lah. 529 and Pandit Harbhagwan Das v. Sardar Partap Singh and others A I R 1938 Lah. 242). The provisions of Pre‑emption Act are technical in nature. The right of pre‑emption can be defeated by all legitimate devices. The vendee can improve his status of right of pre‑emption even prior to the institution of the pre‑emption suit. "If the vendee, who had equal right of pre‑emption with the plaintiff‑pre‑emptor, as a result of the original sale transaction loses his right on account of the principle of sinker as provided in section 19 of the North‑West Frontier Province Pre‑emption Act, 1950, then that loss cannot be considered to be permanent and irremediable"; The vendee does not lose irrevocably his claim to resist the suit. In the present case, Khasra No. 1255, which is shamilat‑i‑deh intervenes and adjoins suit Khasra Nos. 1254 and 1256. Both Muhammad Abbas defendant‑appellant and Sultan Khan plaintiff‑respondent have been held to be co‑sharers in shamilat -i‑deh. Fazal Din defendant‑respondent is not a co‑sharer in shamilat‑i‑deh. The suit land was purchased jointly and in equal shares by Muhammad Abbas who holds contiguous land to the suit land and Fazal Din, who is a stranger. Fazal Din, the stranger, transferred his interest in the suit land purchased to Muhammad Abbas. Sultan Khan instituted the present suit for possession by pre‑emption against Muhammad Abbas and Fazal Din. Muhammad Abbas had, therefore, not irrevocably lost his claim, on the doctrine of sinker, to resist the suit of Sultan Khan. Muhammad Abbas appellant has become entitled to the whole of the suit property prior to the institution of the suit on account of his equal right of pre‑emption with the plaintiff and, therefore, there could be no right of pre‑emption against him. References are made to: (1) Mehr Allah Ditta and another v. Muhammad Ali and another P L D 1972 S C 59. (2) Dost Muhammad Khan v. Imam Bakhsh P L D 1971 Pesh. 150. (3) Jallu and others v. Shahu and others I L R 19 Lah. 93. (4) Bahram Khan v. Sher Akbar and others P L D 1960 Pesh. 1. (5) Gul Shah v. Jamroz and others P L D 1962 Pesh. 34, and (6) Badri Pandeh v. Parsotam Singh and others A I R 1928 All.

697. Consequently the appeal of Muhammad Abbas is accepted, the judgment and decree of the appellate Court are set aside, and the judgment and decree of the trial Civil Judge, dismissing the plaintiff's suit, are restored. Parties to bear their own costs throughout. K. B. A. Appeal accepted.