MAULVI ANWARUL HAQ, J.---Vide registered sale-deed dated 30-4-1979 one Bahab son of Bahadur (or Bahara) (hereinafter to be referred as the vendor) sold the suit-land mentioned in the plaint to Daulah, the predecessor-in-interest of respondents Nos.2 to 8 and Jiwan predecessor-in-interest of respondents Nos.9-A to 9-F. Atta Muhammad respondent No.1, on the one hand, and Ghulam the deceased petitioner (hereinafter to be referred as the petitioner) and Nazam respondent No.10, on the other, filed suits for possession of the suit-land by pre-emption.
This latter suit was decreed on 28-2-1981. In the first instance the petitioner filed an appeal against the said decree, which was dismissed. Thereafter he impleaded the said rival pre-emptors in his suit. It was stated in the amended plaint that the respondent No.1 has a superior right of pre- emption as he is collateral of vendor and an owner in the estate as well as a co-sharer in the suit- land whereas the defendants in the suit are strangers. The vendees filed a written statement denying the said allegations. Now, the petitioner and respondent No.10 in their written statement proceeded to state that their suit had already been decreed and the appeal of the petitioner is dismissed and they have paid the pre-emption money and the decree has also been executed and, as such, the suit is not competent. They accused the respondent No.1 of collusion with the vendees. Now, in response to para. 5 of the plaint wherein the respondent No.1 had stated his superior right of pre-emption, it was stated that both the said rival pre-emptors are the collaterals of the vendors while Nazam respondent No.10 is also an owner of the estate. Following issues were framed by the learned trial Court:--
(1) Whether the plaintiff has superior right of pre-emption? OPP
(2) Whether the ex parte decree dated 28-2-1981, is ineffective on the rights of the plaintiff? OPP
(3) Whether the ostensible sale price of Rs.22,000 was fixed in good faith or actually paid? OPD
(4) If not, what was the market value of the suit-land at the time of sale? OPD
(5) Whether the plaintiff is estopped by his own conduct from bringing this suit? OPD
(6) Whether the suit is time-barred? OPD
(7) Whether the suit has been wrongly valued for the purpose of court-fee and jurisdiction? If so, its effect and what is the correct valuation? OP Parties.
(8) Whether the suit is collusive? If so its effect? OPD
(9) Whether the suit is not competent in view of the preliminary objection No.5 of the written statement filed by defendants Nos.3 and 4? OPD No.3 and 4.
(10) Whether the plaintiff has no locus standi to file this suit? OPD Nos.3 and 4.
(11) Whether the suit is not maintainable in its present form? OPD Nos.3 and 4.
(12) Relief.
Evidence of the parties was recorded. Vide judgment and decree, dated 22-6-1986 the suit of respondent No.1 was decreed subject to deposit of Rs.22,000. This amount was directed to be paid to the said rival pre-emptors as they had already deposited the said amount which was withdrawn by the vendees. A first appeal was filed by the petitioner and the respondent No.10 which was dismissed by a learned Additional District Judge, Vehari holding camp at Burewala on 8-9-1991.
2. Mian Mushtaq Ahmad, learned counsel for the petitioner (Nazam-respondent No.10 has left the contest and has not challenged the said judgments and decrees) contends that the evidence on record has been misread. According to him it is almost an admitted position on record that Ghulam was the real brother of Baqir (the father of Nazam respondent No.10) and Ghulam was the son of Pahlwan son of Sayya and, as such, the petitioner had an equal right with the respondent No.1. Further contends that doctrine of sinker is not applicable to the plaintiffs in a pre-emption suit as one of them may withdraw at any time. He relies on the case of Mehr Allah Ditta and another v.
Muhammad Ali and another PLD 1972 SC 59 and Nizam has since left the field. He has also tried to argue that the earlier decree passed in favour of Ghulam and Nazam constituted a formidable defence to the suit of respondent No.1 and could not have been set aside.
3. Learned counsel for the contesting respondent No.1, on the other hand, contends that the doctrine of sinker does apply to the plaintiffs and although Ghulam is related to the vendor in equal degree along with his client. Nizam who is further away by one degree having been joined by Ghulam, the latter also looses his right. In the matter of decree in favour of rival pre-emptors, his contention is that it was obtained during the pendency of the suit filed by his client and was of no effect on his rights as he was not a party to the said suit whereas he has impleaded rival pre- emptors.
4. I have gone through the copies of the records. I have already referred to the pleadings of the parties above. It will be seen that Atta Muhammad respondent No.1 claimed to be a collateral of the vendor. In response it was stated that both the rival pre-emptors i.e. Petitioner and respondent No.10 are collaterals of Bahab vendor. Now, there appears to be no dispute that Ghulam petitioner as well as respondent No.1 are related to Bahab vendor in the same degree. This is the finding recorded by the learned trial Court. I do find that in para.5 of the impugned judgment, dated 8-9- 1991 the learned Additional District Judge has written that Nizam respondent No.10 is in the same line of pedigree-table; yet he has associated Ghulam a stranger with him. It is but obvious that the observations suffered from a clerical error as the learned Additional District Judge has misplaced and misstated both the said persons in relation to the vendor. Be that as it may, respondent No.1 Atta Muhammad appeared as P.W.1. He stated that the vendor and the witness, come down from the same grandfather. In his cross-examination, he admitted that Nizam respondent No.10 is son of Baqir, Ghulam and Baqir are brothers and they are son of Pehlwan, who is son of Sayya. He then admitted the entire pedigree that was put to him. Similar is the case with Nizam D.W.1. This being so, I do find that Bahab vendor was son of Bahara (or Bahadur) son of Sayya, Atta Muhammad respondent No.1 is son of Noor Muhammad son of Sayya, Nizam respondent No.10 is son of Baqir son of Pahlwan son of Sayya while Ghulam petitioner is son of Pahlwan son of Sayya, thus, Ghulam petitioner and Atta Muhammad respondent No.1 are related to Bahab vendor in equal degrees, i.e. They are his brother's sons. Now, the legal fiction is that it is to be presumed that the vendor has died and only the contestants whether the rival pre-emptors or vendees are surviving. Thus, both Atta Muhammad and Ghulam would inherit the estate of Bahab, Nizam being excluded as he is in the third degree I, therefore, do hold that Ghulam and Atta Muhammad have equal right of pre- emption being collaterals in the same degree of Bahab vendor.
5. Now coming to the other contentions of the learned counsel for the petitioner. It is an admitted fact that the suits filed by Ghulam petitioner and respondent No.10, on the one hand, and Atta Muhammad respondent No.1 on the other, were filed against the vendees claiming a superior right of pre-emption qua the same sale of suit-land. Now, under section 28 of the Punjab Pre-emption Act it is mandatory that where more than one suit arising out of the same sale are pending, the plaintiff in each suit is to be joined as a defendant in each of the other suits. This of course was not done as the suit filed by the petitioner and his co-plaintiff was decreed on 28-2-1981. However, the respondent No.1 came to know about the said fact well in time and proceeded to implead them in his suit. To my mind said decree would not at all have any legal effect. So far as the rights of the respondent No.1 are concerned, the reason being that under section 28 of the Pre-emption Act, 1913 read with Order XX, rule 14, C.P.C. In such-like cases the Court is bound to state the order, in which, each claimant is entitled to exercise his right.
Apart from the said statutory provisions in the Pre-emption Act, 1913 as also Code of Civil Procedure, the decree in favour of the petitioner and respondent No.10 would also be hit by the doctrine of lis pendence. In somewhat similar circumstances in the case Haji Muhammad Suleman v. Muhammad Akram Khan and others PLD 1956 FC 97 this Court non-suited the vendees from a rival pre-emptor whose suit has been decreed earlier, as against the other pre-emptor in whose suit the rival pre-emptor as well as the vendees were made a party. The judgment was upheld by the learned Federal Court.
6. Learned counsel then tried to contend that in terms of Order I, rule 10, C.P.C. The suit shall be deemed to have been filed against the petitioner and his co-plaintiffs when they were impleaded as parties to the suit filed by Atta Muhammad respondent No.1. The precise contention is that the suit would be barred by time. I do not find any force in this contention. The decree was passed during the pendency of the suit filed by respondent, No.1. The decree-holders can safely be assumed to be claimant under the original vendees by virtue of the said decree. In the case of Sarwar Shah and another v. Mst. Nargis Bibi PLD 1974 AJK 1 with reference to the judgment of this Court reported as 31 PR 1913 as also the judgment of Allahabad High Court reported as AIR 1939 All.
158, which is in its turn is based on a judgment of Chief Court Punjab reported as 18 IC 70 it has been held that in the matter of subsequent vendees the matter will be governed by the residuary Article 120 of the Limitation Act, 1908 and not Article 10 thereof.
7. For all that has been discussed above this civil revision is partly allowed, both the impugned judgments and decrees are set aside. I am told that Ghulam petitioner as well as Nizam respondent No.10 had already deposited Rs.22,000 i.e. The pre-emption money and so did Atta Muhammad respondent No.1 this being so the following decree is passed. The suit filed by Atta Muhammad is decreed to the extent of 1/2 of the suit-land while the suit filed by Ghulam is decreed to the extent of remaining half; Atta Muhammad will be entitled to withdraw Rs.11,000 from the learned trial Court out of the amount deposited by him and similarly Nizam respondent No.'10 will be entitled to recover Rs.11,000 from the amount deposited by the two in the learned trial Court.
No order as to costs.