' MUHAMMAD JEHANGHIR ARSHAD, J.--- This R.S.A. Is' directed against the judgment dated 18-1-1984 passed by learned Civil Judge 1st Class, Chichawatni decreeing pre-emption suit of the respondent Umar Din and the judgment dated 17-10-1988 passed by learned District Judge, Sahiwal rejecting the 1st appeal of the appellants against judgment and decree of learned trial Court dated 18-1-1984.
2. The facts in brief are that Falak Sher and Ghulam Muhammad respondents Nos.2 and 3 filed a declaratory suit with regard to land.. Measuring 69 Kanals, 16 Marlas situated in Chak No,31/11-L Tehsil Chichawatni District Sahiwal on 21-3-1974 against Mst. Imam Bibi and Mst. Karam Bibi daughters of Imam Din, vide plaint Exh.P.4. Mst. Imam Bibi and Mst. Karam Bibi respondents appeared in the said civil suit through their general attorney namely Jamal Din and filed consenting written statement Exh.P.5 admitting the claim of Falak Sher, etc. And the learned trial Court on the basis of said consenting written statement decreed the suit on 1-4-1974 vide judgment and decree Exh.P.10 and Exh.P.11, respectively. Considering the above judgment and decree as sale, Muhammad Rafiq and Abdul Ghafoor present appellants filed a preemption suit against Falak Sher and Ghulam Muhammad on 5-2-1975 vide plaint Exh.P.2 and in the said suit a compromise was effected vide Exh.P.3 and in terms of the said compromise the pre-emption suit was decreed in favour of Muhammad Rafiq, etc. Appellants on 20-1-1976 vide judgment and decree Exh.P.8 and Exh.P.9. However, against the declaratory decree dated 1-4-1974 mentioned above, present pre-emption suit was also filed by Umar Din present respondent No,1 against Falak Sher and Ghulam Muhammad present respondents Nos.2 and 3 on 27-2-1975 claiming his superior right on the ground that he was real brother of Mst. Imam Bibi and Mst. Karam Bibi, whereas Falak Sher and Ghulam Muhammad were strangers. Falak Sher and Ghulam Muhammad filed written statements in the suit on 24-4-1978 raising a plea that against the decree dated 20-1-1976 pre- emption suit filed by Muhammad Rafiq son of Mst. Karam Bibi and Abdul Ghafoor son of Mst. Imam Bibi stood decreed on 20-1-1976, therefore, the present suit was neither competent nor maintainable. However, on the said disclosure by respondents Nos.2 and 3, Muhammad Rafiq and Abdul Ghafoor present appellants were impleaded as party by the learned trial Court and both the appellants filed their written statements. On receipt of written statement from Falak Sher and Ghulam Muhammad respondents Nos.2 and 3 the learned trial Court at the first instance framed the following issues on 18-5-1976:--- Issues
(1) Whether present suit cannot proceed? OPD
(2) Whether suit has not been valued properly for the purposes of court-fee. If so, what is its effect?
OPD
(3) Whether suit is barred by time? OPD.
(4) Whether the ostensible sale price of Rs,60,000 was fixed in good faith or actually paid? OPD
(5) If case issue No,4 is decided against the defendants, then what is the market value of the land in suit? OP-parties.
(6) Relief.
' After receipt of written statement from Muhammad Rafiq and Abdul Ghafoor present appellants, the learned trial Court on 29-10-1978 framed the following additional issues:--- Additional Issues:--- (1-A) What is the effect of decree for possession by way of preemption obtained by defendants Nos.3 and 4 on 20-1-1976 in respect of the suit land? OPD (1-B) Whether the plaintiff had not taken interest to purchase the suit land and was not prepared to purchase it. If so its effect? OPD After recording evidence and on the conclusion of the trial vide judgment dated 18-1-1984 the learned trial Court decreed the suit in favour of Umar Din respondent No,1 on payment of Rs,60,000 by answering Issue No,1-A, against the appellants holding the decree obtained by the appellants on 20-1-1976 as collusive. Against the above judgment and decree of the learned trial Court the appellants filed an appeal and the learned District Judge, Sahiwal vide order dated 16-5-1987 framed the following additional issue:--- Additional Issue:--- (1-C) Whether the decree dated 20-1-1976 in favour of defendants Nos.3 and 4 against defendants Nos.1 and 2 is for the benefits of the latters and moreover, collusive, fraudulent void and ineffective on the rights of the plaintiff? OPP and also amended Issue No,1-A as follows:--- (1-A) If issue No,1-C is answered in affirmative, what is its effect? OPP The learned District Judge, thereafter, sent the file to the learned trial Court with the direction to record evidence of the parties on Issue No,1-C above, if produced any and then to return the findings along with file to the appellate Court. The learned trial Court was also directed to record fresh findings on amended Issue No,1-A. Before the learned trial Court Umar Din respondent produced only one witness Abdul Majeed and on the basis of said evidence the learned trial Court vide findings recorded on 28-9- 1987 answered both the issues i,e, Issues Nos.1-C and 1-A in favour of the appellants. However, on receipt of the findings from the trial Court the learned District Judge vide judgment dated 17-10- 1988 reversed the findings of the learned trial. Court on Issue No,1-C and by holding the decree dated 20-1-1976 in favour of appellants as collusive dismissed their appeal. Against the judgments and decree of the two Courts below the appellants filed the present R.S.A. And this Court vide order dated 8-3-2004 framed the following additional issues:--- Additional Issue ' Whether the plaintiff-pre-emptor i,e, Umar Din, Muhammad Rafique and Abdul Ghafoor have superior right as against the vendees, if so, what is the inter se superiority of the rival preemptors"?
OP Parties. ' and sent the file to the learned District Judge, Sahiwal with the direction to entrust the file to any Civil Judge of competent jurisdiction to record evidence of the parties and its findings on the above issue and then transmit the file back to this Court. The learned District Judge, thereafter, sent the file to the learned Civil Judge 1st Class at Chichawatni who after recording the evidence vide judgment dated 21-6-2004 held the appellants having superior right of pre-emption as against Umar Din respondent-pre-emptor. It would not be out of place to mention here that against the above mentioned order of this Court dated 8-3-2004 Umar Din respondent filed a Civil Appeal No,326 of 2004 before the Honourable. Supreme Court of Pakistan but the same was dismissed on 1-10-2004.
3. On careful perusal of the above stated facts, I am of the view that the decision of this R.S.A.
Depends on the determination of following two points:---
(i) What is the effect of decree dated 20-1-1976 obtained by the appellants; and (ii) Who among the appellants and Umar Din respondent No,1 possess the superior right of pre-emption under the Punjab Preemption Act, 1913.
4. So far as the first question is concerned, the main stay of Mr. Javed Akhtar Vains, Advocate learned counsel for Umar Din respondent No,1 is that as the decree obtained by the appellants on 20-1-1976 was collusive and had been obtained without impleading respondent No,1 as party in terms of section 28, of the Punjab Pre-emption Act, 1913, therefore, the same has no decree having any binding effect on Umar Din respondent, as such the findings of the learned trial Court dated 28-9-1987 answering Issue Nos.1-A and 1-C be upheld and the appeal be dismissed. Reliance in this respect has been placed on the case Zahoor Alam and others v. Fazal Hussain and others 1991 SCM R 763 and Keshri Kumar Singh v. Rana Swaroop Singh and others AIR 1942 Oudh 19. However, learned counsel has not disputed the findings recorded by the learned trial Court on additional issue framed by this Court on 4-3-2004 viz. Superior right of pre-emption in favour of the appellants.
5. On the other hand, learned counsel for the appellants has argued that the suit was in fact filed by the respondents on 5-2-1975 vide plaint Exh.P.2 which was decreed on 20-1-1976 vide judgment and decree Exh.P.8 and Exh.P.9, whereas Umar Din filed pre - emption suit on 27-7-1975 and as the factum of pendency of the suit filed by Umar Din at the time of decree dated 20-1-1976 was not in the knowledge of the appellants, therefore, neither requirement of section 28, of the Punjab Pre- emption Act, 1913 could be fulfilled nor Umar Din could be impleaded in the pre-emption suit filed by the appellants. Even Umar Din filed his pre-emption without impleading the appellants as party and it was later on when objection was raised on behalf a Falak Sher and Ghulam Muhammad in their written statements, the appellants were impleaded in his suit by Umar Din. However, the contention of learned counsel for the appellants is that even if the decree obtained by the appellants is ignored having been obtained in violation of section 28, of the Punjab Pre-emption Act, 1913, the decree in favour of the appellants could not be declared as nullity, as held by this Court in the case Mahmood Khan v. Khan Muhammad and 5 others PLD 1973 Lah. 806, and the suit filed by respondent No,1 can still be decided on the comparative analysis of superior right of pre- emption between the rival pre-emptors and since admittedly both the appellants were sons of vendees Imam Bibi and Karam Bibi, therefore, has superior right of preemption qua Umar Din being brother of Imam Bibi, etc, and on this score also the appellants having superior right of pre- emption had rightly been held so entitled by the trial Court in its findings recorded on 21-6-2004.
Learned counsel for the appellants to support his contention has also placed reliance on the case Ghulam Tayyib v. Shahro Khan and others PLD 1962 (W.P.) BJ 1. It is further argued by learned counsel for the appellants that even otherwise the findings of the learned trial Court dated 17-10- 1988 holding the decree dated 20-1-1976 as collusive is neither supported by evidence nor law.
6. I have considered the abovementioned arguments of learned counsel for the parties; have gone through the entire record with their assistance and thrashed the cited case law.
7. My considerable opinion after appraisal of the abovementioned arguments is that as the decree in favour of appellants was obtained in violation of section 28, of the Punjab Pre-emption Act, 1913; therefore, the same is neither a valid decree nor has any binding effect on Umar Din respondent, but this alone is not sufficient to non-suit the appellants especially when suit of Umar Din respondent was filed after the institution of the suit by the appellants and that too without impleading the appellants in his suit at the initial stage and the learned trial Court on coming to know of the passing of the decree in favour of appellants on 20-1-1976 besides impleading the appellants as party in the suit should have immediately requisitioned the file of the suit filed by the appellants and should have initiated proceedings in the said suit also in terms of section 28, of the Punjab Pre-emption Act, 1913 notwithstanding the decree dated 20-1-1976 obtained by the appellants and then should have decided the legality of the said decree. Today, i,e, after a lapse of three decades it is neither proper nor in the interest of justice to non-suit the appellants by merely declaring the decree obtained by them as collusive, whereas, in terms of section 28, of the Punjab Pre-emption Act, 1913 the only effect of such decree is that same is not binding on the rival preemptor if the same has been obtained in violation of the provisions as contained yin section 28, of the Punjab Pre-emption Act, 1913 as produced below:--- "28. Concurrent hearing of suits.--- When more suits than one arising out of the same sale or for closure are pending the plaintiff in each suit shall be joined as defendant in each of the other suits, and in deciding the suits the Court shall in each decree state the order in which each claimant is entitled to exercise his right,"
A bare perusal of the above provision, clearly indicates that in case of rival pre-emptors the claim of both rival pre-emptors to exercise their respective right of pre-emption shall be stated by the Court while decreeing the suits and it is no where provided under section 28, ibid that suit filed by the pre-emptor without impleading the rival pre-emptor in his suit in violation of above provision shall be thrown out as being collusive or not maintainable. The same is the rationale behind a Division Bench judgment of this Court in Ghulam Tayyib v. Shahro Khan and others PLD 1962 (WP) BJ 1, and Mahmood Khan v. Khan Muhammad and 5 others PLD 1973 Lah.
806. The following observations of this Court in the latter judgment are of valuable help for decision of this case:--- "There is no gainsaying the fact that Muhammad Asif's decree having been obtained in disregard of the provisions of section 28, of the Punjab Pre-emption Act, is not binding on Mahmood Khan, but as has been rightly pointed out by counsel for the respondents, with reference to Ghulam Tayyib v.
Shahro Khan and others PLD 1962 BJ 1 such a decree is not a nullity and Mahmood Khan shall have to prove his superior right as against the vendees and Muhammad Asif, in his own suit, in which Muhammad Asif has been impleaded as a party."
'So far as the judgment of Honourable Supreme Court in Zahoor Alain and others v. Fazal Hussain and others 1991 SCM R 763, is concerned, the same is of no help to the respondents, rather same advances the claim of appellants that the decree dated 20-1-1976 was not nullity and the present respondent No,1 had to prove his superior right in his suit as against the appellants as well as veridees. The above discussion leads me to conclude that despite the decree obtained by the appellants on 20-1-1976 in violation of section 28, of the Punjab Pre-emption Act, 1913 and even if the same is ignored, Umar Din respondent No,1 could not have been granted first decree of pre- emption as against the appellants who in terms of findings of the learned trial Court dated 21-5- 2004 recorded on the additional issue framed by this Court on 28-4-2004 holding the appellants having superior right of pre-emption qua Umar Din respondent,No,1 and the said findings having been admitted by respondent No,1 through his learned counsel and not challenged in terms of Order XLI, rule 26, C.P.C. Despite query by this Court from his learned counsel before opening of arguments.
8. The upshot of above discussion is that this R.S.A. Is accepted and it is held that appellants being real sons of vendees have superior right of pre-emption qua Umar Din respondents being their real brothers.
9. However, another question arose during pendency of the first appeal before the learned District Judge, Sahiwal when Abdul Ghafoor one of the appellants died and except Mst. Parveen Akhtar (widow) who joined the appeal as appellant, his other legal heirs (Mst. Imam Bibimother, Abdul Majid-brother and Mst. Naziran Bibi-sister) refused to join as appellants and thus were impleaded as respondents. Except Mst. Parveen Akhtar-widow, the other above mentioned legal heirs of Abdul Ghafoor deceased made statement before the learned District Judge on 26-6-1988 that they accepted the decree in favour of Umar Din respondent No,1 to the extent of their share from the inheritance of Abdul Ghafoor deceased. Mr. Javed Akhtar Vains, Advocate learned counsel for the respondent, therefore, alternatively argued that to the extent of 3/4 share of Abdul Ghafoor the decree at least to the extent of Umar Din be kept intact. The proceedings conducted by the learned District Judge, Sahiwal have been perused and same verify the contention of learned counsel for respondent Umar Din, when except Mst. Parveen Akhtar widow of Abdul Ghafoor all the legal heirs stated before the learned District Judge that they had no objection if the decree in favour of Umar Din to the extent of share of Abdul Ghafoor is kept intact in favour of Umar Din.
10. Resultantly while allowing this R.S.A, the decree granted by Rao Akbar Ali Civil Judge 1st Class, Chichawatni on 18-1-1984 and affirmed through judgment dated 17-10-1988 by learned District Judge, Sahiwal with regard to the entire disputed area of &9 Kanals, 16 Marlas in favour of Umar Din respondent No,1 is modified in the following manner.--
(1) Umar Din respondent No,1 is held entitled to retain area to the extent of 26 Kanals falling to the share of Abdul Ghafoor deceased after deducting the share of his widow measuring 8 Kanals, 14 Marlas;
(ii) Muhammad Rafiq appellant is held entitled to retain 35 Kanals, 18 Marlas (1/2 share of the total area i,e, 43 Kanals, 18 Marlas) and Mst. Parveen Akhtar appellant is held entitled to 1/4th share of heritance of Abdul Ghafoor as widow out of the remaining 34 Kanals, 18 Marla (measuring 8 Kanal, 14 Marlas), therefore, the suit filed by Umar Din to the extent of 42-Kanal, 14-Marla stands dismissed and the decree passed by two Courts below is kept intact to the extent of 26 Kanal;
(iii) out of the total amount of Rs,60,000, if already deposited by Umar Din respondent in terms of judgment of the learned District Judge dated 17-10-1988, and amount of Rs,22,500 shall be paid to the abovementioned legal heirs of Abdul Ghafoor deceased, except his widow Mst. Parveen Akhtar, and the remaining amount of Rs,37,500 (Rs,30,000 as price of 1/2 share of Umar Din and Rs,7500 as share of Mst. Parveen Akhtar) shall be returned to Umar Din-respondent No,l. Amended decree be prepared in the above manner, and
(iv) in case, Umar Din in terms of the judgment of the learned District Judge dated 17-10-1988 has not deposited the amount so far, he can deposit Rs,22,500 minus Zar-e-Panjum, if any, till 30-6- 2007. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.