1. ' This is vendee-defendants' second appeal against the judgment and decree of District Judge dated 31st May, 1977, whereby the appeal of plaintiff-appellants was accepted and their suit was decreed on the basis of right of prior purchase.
2. ' The property in suit was jointly owned by Lal Khan and Abdul Aziz the vendors. It was sold to the appellants who were then not the co-sharers in the Khewat out of which fractional shares were sold to them by two of the co-sharers namely Lal Khan and Abdul Aziz for a consideration of Rs, 8,000. Apart from being the co-sharers, it was also pleaded by the plaintiffs that they and the vendors descend from a common ancestor and so by addition of these two qualifications they have had a superior right for purchase of the suit land as compared to the vendees. It was also asserted by the plaintiffs that the vendors sold the land pre-empted even in excess of their shares to a certain extent. But this plea of excess beyond the shares defined was abandoned by the counsel for the respondents setting up a case simply on the basis of pre-emption.
3. ' The vendee-defendants contested the suit. The co-sharership of the plaintiffs was conceded to but ignorance of their knowledge about the alleged relationship of the pre-emptors with the vendors was pleaded. It was then during the pendency of the suit that 8 marlas and a sarsahis of land out of the same Khatas the vendees were able to obtain by gift from Muhammad Bashir one of the co-sharers of the pre-emptors and the vendors. Thus the vendees say that they were able to improve their status bringing them at the level of pre-emptors in relation to the co-sharership. To this improvement of status a challenge was made by the pre-emptors to the effect that it was simply made to defraud the pre-emptors and defeat them in their suit of pre-emption as possession of the property gifted was not delivered to the donees. And so there was no gift duly made in the eye of law. A gift without a possession of the property gifted is deemed to be no gift for being incomplete Some of the issues relevant for the determination of this appeal were struck by the trial Court to the following effect :-
(1) Whether sale deed of the land in question for being without a consideration would be against law and it was also made in excess of the shares of the vendors and so it is ineffective and void as against the rights of the plaintiff ? 0. P. P.
(2) In case issue No, 1 is not proved ; Whether the plaintiffs have a right of prior purchase as compared to the vendees ?
(3) Whether instant suit was hit by the principle of res judicata ?
4. ' The learned counsel for the parties were heard and the perusal of the files was accordingly made.
5. ' Issue No, 1 was given up by the counsel for the plaintiffs-respondents. The previous suit of the plaintiffs was based on a different cause of action which was dismissed under Order XVII, rule 83, P.
6. C. For default of evidence. Thus principle of res judicata cannot be made applicable to the circumstances of the instant case in relation to the right of pre-emption exercised by the plaintiffs.
7. Therefore, Issues Nos. 1 and 5 stand determined accordingly.
8. ' The trial Court found Issue No, 2 against the plaintiffs because according to it the plaintiffs were unable to establish their relationship with the vendors as alleged and more osier on improvement in the status of the vendees ; they became the co-sharers in the land in suit and so their rights having become equal with the plaintiffs, the right of prior purchases vested in the plaintiffs turned to be non-existent. Thus according to the Sub-Judge the validity of the gift questioned was maintained in law but on appeal to the District Judge it was otherwise found by him that the gift of the property being incomplete for want of possession was not a gift at all and so it could not be said that the vendees were able to improve their status as contended by them. It was further held by the learned District Judge that the plaintiffs were successful in proving their relationship with the vendors so as to give them an order of precedence in matter of pre-emption in the instant case.
9. Consequently, the suit of the plaintiffs was accordingly decreed on the basis of the right of preemption by the lower appellate Court. After going through the record I will agree with the findings arrived at by the Lower Appellate Court. Muhammad Din one of the, plaintiffs appeared before the trial Court as a witness to prove that the plaintiffs were related . To the vendors who all descend from a common ancestor. Though in the pedigree-table only one of the plaintiffs finds place yet it does not mean that absence of any one from the table cuts it off from the line of posterity claimed. At the time the pedigree-table was prepared the possibility of one of the forefathers residing somewhere else cannot be ruled out which might have resulted in exclusion of his name from the pedigree table. The vendees did not know anything in respect of the relationship existing between the plaintiffs pre-emptors and the vendors and they did not even lead any evidence to rebut the statement of Muhammad Din the plaintiff and so the evidence of Muhammad Din cannot be lightly brushed aside in relation to the relationship stated on solemn affirmation.
10. For the reasons above it was rightly held by the learned District Judge that the plaintiffs were related to the vendees who descend from common ancestor and admittedly they are the co- sharers in the property in suit. Moreover, a meagre amount of gift from quite a large number of fields, the possession of which could not be handed over to the donees, shows that it was simply made to defraud the pre-emptors so as to defeat them in the exercise of their right of prior purchase. Thus for the gift having not termed as a complete gift and as such being void, the status of the vendees could not be improved as contended. Even if they were able to improve their status in any manner they still could not be allowed to take advantage of principle of equality of status as the plaintiffs and the vendors being descendants of a common ancestor, the pre-emptors have had a superior right on the basis of relationship. In presence of the two qualifications of the pre- emptors as indicated above they are bound to succeed in obtaining a pre-emption decree of the property in suit.
11. ' Thus there being no force in this appeal, it is dismissed with costs.