SARDAR MUHAMMAD ASLAM, J. - Ahmad Khan etc. Respondents filed a suit for possession through preemption against the petitioner in respect of the land fully detailed and described in the head- note of-the plaint. The petitioner entered appearance and filed his written statement. Controversy gave- rise to framing of issues. Both the parties produced their respective evidence. The learned Trial Court decreed the suit of the respondents vide its judgment and decree dated 31.1.2003.
Aggrieved of the judgment and decree, the petitioner preferred an appeal, which came up for hearing before the leamed Additional District Judge, Chakwal, who vide his judgment and decree dated 23.9.2003 held that there are two plaintiffs and one defendant, who have equal right of pre- emption. The plaintiffs two in numbers are. Entitled to 2/3rd share while the defendant is entitled to retain 1/3rd of the suit property. Resultantly, the appeal was partly allowed to the extent of 1/3rd share of the suit property in favour of the. Petitioner, whereas, the appeal was dismissed for remaining 2/3rd share. Being dis-satisfied with the said judgment and decree the petitioner calls in question both the judgments and decree by way of this revision petition.
2. The learned counsel for the petitioner contends that the transaction in dispute, in fact, was of.
Gift, wrongly held as sale by the learned Court. He also contends that on proof of equality of superior right of pre-emption, the preemptor and vendee shall share the land equally.
3 On the contrary, the learned counsel for the respondent opposing the same submitted that the transaction in dispute was in reality a sale and was camouflaged as gift. He submits that the vendee defendant has not substantiated the reasons for the alleged gift in his favour. As to the argument of the distribution of the property between the pre-emptor and the vendee-defendant he placed reliance on Section 20 of the Punjab Pre-emption Act, 1991, to contend that both pre- emptors and vendee/defendant having equal right in pre-emption will divide the property between them per capita. Relied on Feroze Khan and 3 others v. Ahmad Yar (1992 M LD 1570).
4. Heard record perused. Ahmed Khan appeared and PW1 and stated that the vendor and vendee/defendant had no relationship inter se. The sister of vendor was divorced by the vendee.
The vendor has not gifted the land. The transaction was camouflaged in order to defeat the pre- emptive rights, ln cross-examination, the defendant suggested his distant relations, with the vendor. Ghulam Ali appeared as PW.2. He deposed that Yaqoob had informed him that the sale has taken place and the transaction has been shown as gift. Yaqoob appeared as PW 3 and stated that Muhammad Khan vendor, had told him of the transfer of the suit land to the defendant by way of sale. The defendant himself appeared as DW.1 He deposed that the land in dispute was gifted to hart by Muhammad Khan, who is son of cousin's sister of his father, ln cross- examination, he stated that Muhammad Khan had a son and two daughters. His wife is also alive. He has admitted that he had divorced the sister of the vendor. He stated in cross examination, that he does not remember at which place and in which Mauza the mutation in dispute was entered and sanctioned. He further stated that he doss not remember the detail of khasra number from which he has taken the land. He also does not remember that what was the total area of the land. He also expressed ignorance and does not remember as to whether he purchased the entire khasra number or part of it Thus portion of statement in cross- examination is produced for ready reference:- ((Urdu Text))
5. Muhammad Khan transferor had a son, two daughters and wife. The petitioner/transferee was not closely related to him No evidence was brought on record in proof of financial status of Muhammad Khan. Why will he gift the property in favour of a distant relation? What were the reasons apparently, are not coming forth. The defendant in his own statement has almost, conceded the nature of transaction.. Learned Courts below also found that the transaction in dispute is one of sale concurrent view in regard to nature of transaction does not call for interference.
6. The pre-emptors as well as the vendee/defendant are co-sharers in the suit property. Appellate Court granted a decree to the extent of 2/3rd share in favour of the plaintiffs, two in numbers, while sole defendant will retain 1/3rd share.
7. Section 20 of the Punjab Pre-emptior Act, 1991 mandates that where the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right of pre-emption, the property shall be shared by them equally, Section 2 of N-.W.F.P., Act, 1987 is similarly worded, It came up for consideration before the Honourable Supreme Court of Pakistan in cases of Kala Khan v. Ayub Khan (1993 SCM R 543) and Sar Anjam Khan v. Abdullah Khan (1999 SCM R 2167), wherein it was held that the preemptor and vendee/defendant falling in the same class have, equal right of pre-emption and the property shall be Shared by them equally.
8. Ln Feroze Khan 3 others (supra), a learned Single Bench of this Court interpreted Section 20 of the Act, by placing reliance on Amir Hussain v. Rahim Bakhsh and others (ILR 19 All 466), in the following words:- "Section 20 embodied a rule of Islamic Law, that incase of plurality of persons having equal right of Shuffa, the property shall be distributed per capita among them equally. As the pre-emptors were four in number poised against a sole vendee, they shall be entitled to 4/5th of the property sold leaving the vendee with 1/5th share in it. Above rule for distribution of the pre-emptive property between equally classed pre-emptors tind the vendee found recognition in a celebrated judgment of Allahabad High Court in case of Amir Hussain (plaintiff) v. Rahim Bakhsh and others (defendant)
ILR 19 All 466. Rule laid down in the above case firmly held the field in Allahbad High Court as well as Bombay High Court."
9. The word 'pre-emptor' and the 'vendee' used in Section 20 are meaningful. They belong to two distinct classes. One class is of pre-emptor while the other is of vendee. One pre-emptor or more than one, irrespective of share in land, will distribute equally. The intention of the legislature appears to be that pre-emptors shall distribute the land equally amongst themselves as a class.
As against thus, Section 20 of the Act provides that two classes of preemptor and vendee wilt share equally.
10. Ln the instant case, sole vendee Is confronted by plaintiffs two in numbers. AII are co-sharers.
Whether the land will be distributable to them per capita with 1/3rd share each or pre-emptor and vendee an distinct class will share in equal shares, 1/2 each, the Honourable Supreme Court has taken the view toat, if the pre-emptor and vendee fall in the same class they will share equally.
10. Resultantly following the dictum laid down in the above pronouncement of the Honourable Supreme Court the decree of toe Appellate Court to the extent cf 2/3rd share s modified.
Resultantly, the respondents/plaintiff are entitled tp decree of 1/2 share of the suit property on payment of Rs. 1,500/-. With the above modification, this civil revision is dismissed.