This order will dispose of C.R. No, 255/2007 titled Haji Muhammad Iqbal and three others. Vs. Gul Badshah and C.R. No, 256/2007 titled Gul Badshah. Vs. Haji Muhammad Iqbal and three others as both of them arise out of one and the same judgment and decree of Muhammad Bashir Khan, Additional District Judge, Tank and involve common question of law and facts.
2. Briefly narrated, the facts of the case are that Gul Badshah plaintiff-respondent, hereinafter to be called as pre-emptor, filed a suit for pre-emption regarding the land measuring 14 kanals 09 marlas entered in Khata No, 230, Khasra No, 524 and Khata No, 231 Khasra No, 523 against Haji Muhammad Iqbal and others defendants-respondents, hereinafter to be called as vendees- defendants.
3. It was averred in the plaint that the vendees-defendants had purchased the suit land ostensibly for a sale consideration of Rs, 7,250/- and in order to ward off the pre-emptive right of the pre- emptor, had inserted an inflated amount of Rs, 1,00,000/- in the registered sale-deed No, 104, Bhai No, 1, Volume No, 140 dated 01.7.2004 which inflated amount has neither been fixed in good faith nor actually paid to the vendors.
4. The vendees-defendants submitted detailed written statement controverting the allegations of the pre-emptor and out of the pleadings of the parties, the following issues were framed:--
1. Whether the plaintiff has got superior rights of pre-emption?
2. Whether the plaintiff has fulfilled the requirements of Section 13 of NWFP Pre-emption Act of 1987?
3. Whether suit is within time?
4. Whether Rs, 7250/- were fixed at the time of execution of sale?
5. In case Issue No, 4 is not proved what can be market value of the property?
6. Whether plaintiff is entitled to the decree as prayed for?
7. Relief.
5. The parties produced their respective evidence as they wished to adduce all the learned trial Court, after hearing the counsel for the parties and considering the data available on the record, came to the conclusion that both the parties i,e, the pre-emptor and vendeesdefendants have got equal rights of pre-emption being co-sharers and thus, while fixing the market value of the suit land to be Rs, 1,00,000/-as mentioned in the registered deed, passed a decree in favour of the preemptor and vendees-defendants in equal shares vide judgment and decree in Suit No, 145/1 decided on 23.12.2006 giving 1/2 share to the pre-emptor and 1/2 share to the vendees-defendants.
6. Both the parties, feeling aggrieved, file two appeals, one by Gul Badshah pre-emptor and the other by Haji Muhammad Iqbal and others vendees-defendants which were registered by the learned Additional District Judge, Tank as RCA No, 5/2007 and RCA No, 6/2007 and by a consolidated judgment announced on 24.4.2007, came to the conclusion that the market value as determined by the learned trial Court to be Rs, 1,00,000/- is correct and findings with respect to the issue of market value were maintained. Thus, the appeal filed by Gul Badshah pre-emptor was dismissed. However, the appeal filed by the vendees-defendants Haji Muhammad Iqbal etc was partially accepted and it was held that' the parties being co-sharers falling in the same category are equally entitled and thus, the distribution of property will be as per capita basis. Pre-emptor being one will get 1/5 share while vendees-defendants are four and they will get 4/5 share equally on proportionate sale consideration of rupees one hundred thousand.
7. Gul Badshah pre-emptor (petitioner in C.R. No, 256/2007) has assailed the findings of the learned appellate Court with respect to per capita distribution of property while Haji Muhammad Iqbal etc vendees-defendants (petitioners in C.R. No, 255/2007) have challenged the findings of learned appellate Court with respect to the superior right of pre-emption of the pre-emptor as well as the non-performance of Islamic demands according to law, lack of cause of action and estoppel on the part of pre-emptor was also challenged.
8. Sheikh Iftikhar-ul-Haq, learned counsel appearing on behalf of vendees-defendants has assailed the findings of the learned trial Court with respect to superior right of pre-emption of the pre-emptor. It was argued that the superior right of pre-emption of the pre-emptor was not proved on the record and thus, he was not entitled to the decree as granted by the learned appellate Court. On the question of distribution of property, however, he maintained that the learned appellate Court has rightly distributed the pre-empted land per capita amongst the preemptor and vendees-defendants.
9. Regarding the non-performance of the Islamic demands by the pre-emptor, it was submitted that the performance of `Talb-e-Muwathibat' and `Talb-e-Ishhad' was not proved on record in accordance with law and established principles of proving the same. It was also argued that no cogent evidence was led to prove the performance of Islamic demands.
10.On the other hand, Mr. Faridullah Khan Kundi, learned counsel appearing in motion in C.R. No, 256/2007 for pre-emptor submitted that the sale consideration of Rs, 1,00,000/ as entered in the impugned registered deed was neither fixed in good faith nor actually paid to the vendor and that an inflated amount has been entered in the registered sale-deed just to ward off the superior right of the pre-emptor. On the question of distribution of property, it was submitted that it is true that under Section 20 of the NWFP Pre-emption Act, 1987, if the pre-emptor and vendee are equally entitled, then the land shall be shared equally amongst them, provided they fall in the same clause of pre-emptors and have equal right of pre-emption. Elaborating his arguments, it was submitted that the words, "vendee and pre-emptor" have been used in a singular manner and no plurality can be. inserted into it, when the legislature has not included-the same in Section 20 of the Act ibid. Reliance in this respect was placed on the case of Abdul Hakeem and others. Vs. Khalid Wazir (2004 SCM R 1770) and it was prayed that pre-emptor was entitled to 1/2 share of the pre-empted land.
11.I have gone through the documents annexed with the petitions and have considered the valuable arguments of learned counsel for the parties.
12.Perusal of the record reveals that the pre-emptor as well as the vendees-defendants both are co-sharers. Statement of Akbar Muhammad Khan Patwari Halqa, who appeared as PW-3 would show that the vendees-defendants have also become co-sharers vide mutation No 744 attested on 23.01.2004 and Mutation No 750 attested on 23.2.2004. The impugned sale has been effected vide registered sale-deed No, 104 dated 01.3.2004, so, at the time of sale, both the parties were co- sharers and learned two Courts below have rightly reached at findings with respect to the equal rights of both the parties as co-sharers.
13.Pre-emptor Gul Badshah has proved on record by producing overwhelming evidence the performance of Islamic demands of 'Talb-eMuwathibat' and sending notice `Talb-e-Ishhad' in time The particulars of date, time and place regarding acquiring knowledge of the impugned sale have duly been proved on record and the statements of P.Ws with respect to the performance of Islamic demands have not been shattered in cross-examination. The statements of the witnesses were consistent and coherent with regard to date, time and place when the pre-emptor acquired the knowledge of the impugned sale.
14.It is established on the record that the sale was through registered sale-deed and the sale consideration has been paid to the vendor before the Sub-Registrar which was fixed in good faith and actually paid to, the vendor. The registered sale-deed as well as the endorsement on the registered sale-deed with respect to the payment of sale consideration has duly been proved on the record by the statements of Humayun and Said Alam DW-2 and DW-3 respectively. Thus, the sale consideration fixed by the trial Court and upheld by the learned appellate Court is in accord with the dictum rendered in the cases of Muntazim and another. Vs. Haji Aslam Khan (1980 SCM R 284) and Malik Hussain and others. Vs. Lala Ram Chand and others (PLD 1970 SC 299).
15.The contention of learned counsel for the pre-emptor that the vendees-defendants and pre- emptor being co-sharers are entitled to 1/2 share each and the distribution of the suit land per capita between one pre-emptor and four vendees-defendants by the learned trial Court is also without substance. The judgments cited by the learned counsel for the pre-emptor in case of Hakeem etc supra is not applicable to the facts of the present case as in that case the learned Judge of the High Court had held that the vendee-defendant had not specifically asserted the plea of co-sharership in the written statement and the vendee was not held entitled to the property in spite of the fact that he was co-sharer at the time of sale and thus, the apex Court by reviewing the judgment reported in Abdul Hakeem and others. Vs. Khalid Wazir (2003 SCM R 1501) held the vendee-defendant equally entitled to the pre-empted land under Section 20 of the NWFP Pre- emption Act, 1987.
16.In the instant case, there is one pre-emptor Gul Badshah and the vendees-defendants Haji Muhammad Iqbal etc are four in number and the question of apportionment amongst the parties is in dispute. So, I deem it appropriate to reproduce Section 20 of the NWFP Pre-emption Act, 1987: "20. Where the pre-emptor and vendee equally entitled. Where the pre-emptor and the vendee fall within the same class of preemptors and have equal right of pre-emption, the property shall be shared by them equally."
It is apparent that the pre-emptor and vendee have been used in singular. The applicable rules of interpretation embodied in provincial as well as federal general clauses Act, term singular includes plural and vice versa and thus the distribution of property among the pre-emptor and vendees- defendants will be on per capita basis as held in the case of Haqnawaz and another. Vs. Bashir Ahmad and two others (PLJ 2007 Lahore-177), Muhammad Hayat. Vs. ?aiz All and another (2002 M LD 938 Lahore) and Abdul Latif Vs. Shoukat Ali and 2 others (PLJ 2006 Peshawar 132) and thus the learned appellate Court has rightly modified the judgment and decree of the trial Court with respect to the apportionment of the pre-empted land as on per capita basis. Gul Badshah pre- emptor 1/5 share and Haji Muhammad Iqbal etc. vendees-defendants 4/5 shares on proportionate sale consideration of rupees one hundred thousand.
17.No misreading or non-reading of evidence has been pointed out by the learned counsel for the parties in the impugned judgments and decrees of the Courts below, which are based on established principles of appreciation of evidence.
18.In view of the facts and circumstances of the case narrated above, these revisions fail which are dismissed in limine.