The respondent, Mst. Khurshid Bibi, filed a suit against the appellants, Abdul Hamid and 2 others, for possession of certain. Land through preemption. She claimed right of pre-emption on the ground that she was daughter of Bahadur who had sold the disputed land to the appellants but the appellants were not in any way related to him. In defence, it was alleged by the appellants that they were occupying the disputed land as tenants at the time of its sale and had, therefore, the first right of pre-emption. It was also urged by them that the suit was benami as it. Had been filed by the respondent for the benefit of her husband.
2. The learned Civil Judge who heard the suit found that out of the three appellants only Abdul Hameed cultivated the land in question as a tenant at the time of its, sale in their favour but the other appellants were strangers. Therefore, by applying the doctrine of sinker, he treated all the appellants as strangers vis-a-vis respondent, who was found to be the daughter of the vendor, and recorded a finding to the- effect that she had a superior right of pre-emption. It was also held by hint that the suit was not for the sake of her husband. Resultantly, the suit was decreed by the trial Court.
3. The judgment and decree passed by the learned trial Court were challenged by the appellants by means of an appeal but without success. They have, therefore, come up in second-appeal to this Court.
4. Learned counsel for the appellants c6ntended that the doctrine of sinker was applicable to cases under the Punjab Pre-emption Act, 1913, but did not apply to the right of pre-emption conferred on the tenant by clause (d) of sub-paragraph (3) of paragraph 25 of the Land Reforms Regulation, 1972, hereinafter referred to as the said Regulation, because by virtue of paragraph 3 of the said Regulation its provisions have to take effect notwithstanding anything to the contrary in any other law or any order or decree of a Court or Tribunal or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document. He relied on Muhammad Yusuf etc. v. Board of Revenue etc. (1979 CLC 284) to support his argument.
5. In reply, it was urged by learned counsel for the respondent that the doctrine of sinker was applicable to those cases also in which the right of pre-emption was claimed on the basis of clause (d) of sub-paragraph (3) of paragraph 25 of the said Regulation. In this connection, he cited a Division Bench ruling of this Court in Rana Muhammad Latif Khan and another v. Kan war Saeed Ahmed Khan (PLD 1978 Lah. 299).
6. The case, of Muhammad Yusuf etc., on which reliance was placed by learned counsel for the appellants did not involve any question relating to applicability of the principle of sinker.. In that case, a notification had been issued under subsection (2) of section 8 of the Punjab Pre-emption Act exempting certain land from the operation of the said Act. A sale in respect of a part of that .Land was pre-empted by its tenant. His suit was dismissed on the ground that the right of pre- emption was not available qua the disputed land. 'This decision was challenged by means of an appeal which was accepted and the suit was held to be maintainable. The finding of the. Appellate Court in this behalf was challenged by means of a writ petition before this Court but without success. While dismissing the Constitutional petition, a learned Single Judge of this Court had expressed the view that whenever a sale is made, the tenant had the first right to pre-empt the same in any area and against any class of persons and the provisions of clause (d) of the sub- paragraph (3) of paragraph 25 of the said Regulation cannot be overridden by any other statute or notification.
7. It would, therefore, be observed that the question raised in the case of Muhammad Yusuf etc. Was with regard to the pre-emptibility of certain land and not in respect of the applicability of the principle of sinker. The decision in that case has, therefore, little bearing og the point canvassed before me. This point was, however, specifically agitated in the aforementioned case of Rana Muhammad Latif Khan and another and it was held that the principle of sinker was applicable to those cases of pre-emption also in which the right of pre-emption was claimed under clause (d) of sub-paragraph (3) of paragraph 25 of the said Regulation. The learned Judges who decided the said case observed that the policy of the Pre-emption Act was to keen out strangers and thus maintain the exclusiveness of the estate and that there was not anything in the said Regulation to suggest that the very concept underlying the pre-emption law i. e. To keep the strangers out of the property has been negatived by the said Regulation. I am in respectful agreement with the view taken by this Court in the case of Rana Abdul Latif Khan and another and since that is a Division Bench authority I would follow it even if the observations made in the case of Muhammad Yusuf etc. By a learned Single Judge of this Court are taken to be of any help to the appellants on the point in dispute, namely, the applicability of the principle of sinker to cases involving right of pre- emption guaranteed by clause (d) of subparagraph (3) of paragraph 25 of the said Regulation. I, therefore, uphold the unanimous verdict of the two Courts below that the right of pre-emption claimed by Abdul Hameed appellant for being tenant of the disputed land was hit by the principle of sinker because the other appellants, who were associated with him in connection with the sale in dispute, were strangers.
8. Learned counsel for the appellants also took exception to the finding of the learned trial Court on the issue relating to the appellants' contention that the suit was benami. That issue involved a question of fact on which the finding of the trial Court was not challenged by the appellants beforg the Court of first appeal. Even in the grounds of appeal filed before me, nothing has been said against that finding. It is, therefore, not open to the appellants to assail the decision of the trial Court on the plea that the suit brought by the respondent was benami