' The brief resume of the case is that a suit for pre-emption had been instituted by Bahawal son of Walidar and Hussain son of Sher Muhammad on 19-2-1975, against the defendants Muhammad Mazhar and others claiming their superior rights of pre-emption qua the defendants against the sale of suit-land transferred through Mutation No,14, dated 6-6-1974, for a consideration of Rs,45,000 of Mst. Fatima Bibi, Mst. Bashiran Bibi, the vendors. The plaintiff asserted in their ' plaint that the defendants were stranger in the village and they were co-owners in the estate.
2. Defendants/predecessor-in-interest of appellants Nos.2 to 6 and respondents Nos.2-A to 2-D, contested the suit by filing their written statement. From the controversy appearing on the pleading of the parties, the learned trial Court framed the following issues:-- Issues
(1) Whether the plaintiff have not thumb-marked the plaint and whether they had not verified it, if so, its effect? OPD
(2) Whether the plaintiffs are estopped from filing the suit? OPD
(3) Whether this suit has been improperly valued for the purposes of court-fee and jurisdiction if so, what is the proper valuation and what is its effect? OPD
(4) What is the effect of non-filing of copy of the disputed mutation with the plaint? OPD
(5) Whether the plaintiffs have superior rights of pre-emption against the defendants-vendee?
OPP
(6) Whether Rs,45,000 were fixed in good faith or paid by the defendants to the vendor? OPD
(7) What was the market value of the suit-land at the time of its sale in favour of the defendants?
OPP
(8) Relief.
On 11-9-1976, the following additional issues were framed as 7-A.
Issue No,7-A ' Whether the plaintiffs failed to make up deficiency in court-fee despite time that have been granted by the Court? If so, to what effect? OPD ' Thereafter the following two other additional issues were framed on 13-3-1978.
Issue No,7-B ' Whether this Court lacks jurisdiction? OPD Issue No,7-C ' Whether the suit is not maintainable in law? OPD On 3-10-1984, issue No,7-C was recast as under:- - Issue No,7-C ' Whether the suit is not maintainable as the transaction in question was struck with the approval of District Collector? OPD
3. On 19-2-1983, Bahawal, plaintiff had withdrawn his claim for pre-emption and the suit was dismissed to his extent as withdrawn. The other plaintiff-Hussain, contested the superior right of pre-emption qua the defendants claiming the whole suit-land. After recording, appreciating the evidence of the parties, the learned trial Court vide its judgment and decree dated 7-3-1985, decreed the suit.
4. The said judgment and decree had been assailed by the appellants and the predecessor-in- interest of respondents Nos.2-a to 2-d, through an appeal in the Court of learned District Judge, Sheikhupura, which was accepted by the Appellate Court vide judgment and decree, dated 24-3- 1986, whereby the judgment and decree of the learned trial Court was set aside and suit of the plaintiff was dismissed.
5. On 22-12-1990, the predecessor-in-interest of respondents Nos.2-a to 2-d, sold out of the disputed land, his share measuring 120 Kanals through his general attorney, Muhammad Sadiq in favour of appellants Nos.7 to 12, qua bona tide purchase without notice.
6. Respondent No,1/plaintiff-Hussain, filed R.S.A. No,153 of 1986, in the Lahore High Court, Lahore, against the judgment and decree dated 24-3-1986, passed by the learned Appellate Court. The R.S.A. No,153 of 1986, was accepted on 20-2-2001, and the case was remanded to the learned Additional District Judge, for decision afresh. During the hearing of the appeal, the learned Appellate Court (Additional District Judge), Sheikhupura, impleaded respondents Nos.7 to 8-a to 8- d, as party in the appeal. The learned First Appellate Court vide judgment and decree dated 16-2- 2002, dismissed the appeal.
7. The learned counsel for the appellants contended that the coplaintiff/pre-emptor has withdrawn the suit and such withdrawal of the suit would result into partial pre-emption and the principle of sinker is attracted to the case of the plaintiff/respondent No,1 and his suit is liable to be dismissed on this sole ground. He has placed reliance on Nandi and others v. Shyama Sundar Nandi AIR 1943 Cal. 427 and Muhammad Zafarullah Khan and 3 others v. Hasan Muhammad and another PLD 2004 Lah.
43.
8. On the other hand, the learned counsel for contesting respondents vehemently opposed the arguments advanced by the learned counsel for the appellant and supported the judgment and decree passed by the learned trial Court. He has placed reliance on Mehr Allah Ditta and another v.
Muhammad Ali and another PLD 1972 SC 59 and Malik Hadayat Ullah and 2 others v. Murad Ali Khan PLD 1972 Lah.
69.
9. I have heard the learned counsel for the parties and perused the record. There is cavil to the fact that the co-plaintiff,. Bahawal has withdrawn suit on 19-2-1983, before the passing of the judgment and decree of the learned trial Court dated 7-3-1985.
10. Order XXIII, rule 1, C.P.C. Has provided that:-- "(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim."
' Sub-clause (b) of sub-rule (2) of Rule 1, contemplated that a plaintiff who intends to institute a fresh suit for the subject-matter of that suit or part of a claim on the same subject-matter, he advances sufficient grounds and if permitted to withdraw such suit with permission of the Court and he is at liberty to institute a fresh suit in respect of the subject-matter of such suit and if plaintiff withdraws from a suit, or abandons part of a claim without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim but the Court is not authorized to permit one of the several plaintiffs to withdraw without consent of the other plaintiffs.
11. In the instant suit there was only two. Plaintiffs, Bhawal and Hussain, Bhawal had withdrawn his suit, the other plaintiff has not objected to his withdrawal. Neither he has prayed for to the Court for permission to institute a fresh suit. Where there are several plaintiffs the suit can be withdrawn without consent of all the plaintiffs but any of them may withdraw his suit insofar as his own interest is concerned.
12. As to the objection of the learned counsel for the appellants that the withdrawal of the suit by a co-plaintiff would attract to the principle of partial pre-emption, the partial pre-emption simply prevents a preemptor from making a pick and choose in the sale and requires that normally bargain has to be taken as a whole by pre-emptor who could not elect to get only a part of property sold. Where no part of land had been left out and entire land sold from subject-matter of suit, then no case of partial pre-emption is made out in the circumstances. Reference can be made to Ghulam Haider and 9 others v. Ghulam Muhammad and 18 others 1988 CLC 548 and Murad Bakhsh and another v. Abdul Ghafoor and 5 others 1980 CLC 1274, in this case six plaintiffs had filed a suit for possession through "pre-emption" and prayer of five of plaintiffs was that they be given possession of 3/4th share in disputed land and sixth plaintiff be given possession of remaining 1/4th share. Name of sixth plaintiffs turning out to be a stranger, later removed from list of plaintiffs. The defect in suit having thus been remedied with omission of stranger plaintiff's name and other plaintiffs cannot be made to suffer on that accourtt. The remaining plaintiffs were entitled to possession of entire land in dispute. In the present case the entire sold land was the subject-matter of the suit. No portion of the land was left by the preemptor and the remaining plaintiff Hussain has proved his (sic) cannot be made to suffer on that account. The remaining plaintiffs wee entitled to possession of entire land in dispute. In the present case the entire sold land was the subject-matter of the suit. No portion of the land was left by the pre-emptor and the remaining plaintiff Hussain has proved his superior rights of pre-emption qua the vendee, defendants/appellants and he is entitled for the decree of the whole suit-land. This argument is further strengthened by the dictum laid down by the Honourable Supreme Court in case of Mehr Allah Ditta and another v. Muhammad Ali and another PLD 1972 SC 59. In this suit for pre-emption, the plaintiff associated a co-owner with himself and co-owner having no right of preemption, the question for, consideration raised whether by associating him with himself a stranger, the, pre- emptor in the circumstances lost his right of pre-emption of the property in dispute. It was observed by the Honourable Judges of the apex Court that the right of a pre-emptor-plaintiff is not lost if, in a suit to enforce his right he joins with him a stranger. If such plaintiff, however, insisted in getting their relief jointly, then it was obvious that no relief could be granted at all to them because of associating a stranger. A plaintiff who having superior right of preemption joins another plaintiff pre-emptor with him who having superior rights of pre-emption has no superior rights or is a stranger, then in such circumstances the doctrine of sinker shall be attracted to the case and suit would fail.
13. Herein the instant suit the co-plaintiff, whether he had superior right of pre-emption qua the defendant-vendee or was a stranger, he has withdrawn himself from the suit and if there was any defect that has been cured. The learned counsel for the appellants could riot establish on the record that the plaintiff/decree-holder had claimed part/portion of the suit-land by establishing a superior right.
14. Section 17 of the Punjab Pre-emption Act, 1913, read with section 8 of the Punjab Pre-emption Act, 1991, provided that where a right of pre-emption vests in any class or group of persons, the right may be exercised by all the members of such class or group jointly, and if not exercised by them all jointly, by any two or more of them jointly, and if not exercised by any two or more of them jointly, by them severally. In the instant case two plaintiffs/pre-emptors have exercised their right of pre- emption but out of two one has withdrawn the suit and only one plaintiff having superior rights of pre-emption remained in the field. His right could not be defended on the ground that a co- plaintiff has withdrawn the suit while at the time of withdrawal of the suit, the defendant or co- plaintiff did not object to his withdrawal neither the matter was agitated in earlier litigation through appeal or in the revision in the High Court when the case was remanded to the learned Appellate Court for decision afresh.
15. As to the case-law Baidayanath Nandi v. Shyama Sundar AIR (30) 1943 Cal. 427, referred by the learned counsel for the appellants, the facts of the case are not attracted to the present case. In this case Order XXIII, rule 1, C.P.C. Was discussed by the learned Division Bench of the High Court of Calcutta wherein it has been observed that no permission for fresh suit was asked for by one of the several plaintiffs applying to withdraw the suit, the provisions of sub-rule (4) of Rule 1, Order XXIII, C.P.C. Has no application.
16. For the foregoing reasons, this regular second appeal being IE devoid of any force, is dismissed.