KHAN GUL KHAN and others vs DARAZ KHAN

CH. IJAZ AHMED, J.--- Appellants/petitioners have sought leave against the Lahore High Court's impugned judgment dated 10-10-2008 whereby the civil revision filed by the appellants against the concurrent judgments of the Courts below, was dismissed. This Court on 4-3-2009 granted leave in the following terms:-- "After hearing the learned counsel for the parties, we grant leave to appeal to consider the true scope and application of the provisions of section 20 of the Punjab Pre-emption Act, 1991 as to whether the property being subject-matter of a pre-emption suit was to be divided between the pre-emptors and the vendees on pro rata basis, if all of them were found to have equal right of pre-emption."

2. The detailed facts have already been mentioned in para.2 of the impugned judgment and memo. of petition/appeal. However, necessary facts out of which the present petition arises are that respondent/plaintiff filed suit for possession through pre-emption against the appellants in the Court of Civil Judge, Mianwali on the ground of being Shafi Shareek, Shafi Khaleet and Shafi Jar and sale mutation No.2906 dated 12-3-2003 was illegal and without notice. Respondent filed written statement, controverting the allegations levelled in the plaint. Out of the pleadings the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed the following issues:---

(1) Whether the ostensible sale price was fixed as Rs.6,00,000 in good faith and it was actually paid by the defendants? OPD

(2) If above issue is not proved then what was the market value of the suit property at the time of its sale? OP Parties.

(3) Whether the plaintiff made necessary talbs in accordance with law? OPP

(4) Whether the plaintiff has superior right of pre-emption qua the vendees/defendants? OPP

(5) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD

(6) Whether the defendant is entitled to receive incidental charge in case of decree of the suit?

OPD

(7) Whether the defendant is entitled to special costs under section 35-A C.P.C.? OPD

(8) Relief."

3. The learned trial Court, after completing the legal formalities such as recording of evidence, decreed the suit to the extent of half of suit property according to his findings on issue No.4 that both the parties had equal right of pre-emption with respect to the suit property and the same was to be divided equally between the parties under section 20 of the Punjab Pre-emption Act, 1991.

Appellants being aggrieved filed appeal in the Court of District Judge, Mianwali who dismissed the same vide judgment and decree dated 18-10-2006. Thereafter appellants filed civil revision bearing No.328 of 2007 in the Lahore High Court which was also dismissed vide the impugned judgment.

Hence, this appeal.

4. Learned counsel for the appellants submitted that all the Courts below had decided the case against the appellants in violation of the mandatory provisions of section 20 of the Punjab Pre- emption Act, 1991. The suit was filed by sole respondent against the appellants who are real brothers, therefore, in terms of section 20 of the said Act, the appellants were entitled to 2/3rd share of the property in question whereas respondent was entitled to 1/3rd of the share. In support of his contention, he relied upon the following judgments:---

(i) Muhammad Khan's case 2008 YLR 296, (ii) Muhammad Hayat's case 2002 M LD 938, (iii) Feroze Khan's case 1992 M LD 1570.

5. Learned counsel for the respondent supported the impugned judgment.

6. We have given our anxious consideration to the contentions of the learned counsel for the parties and have perused the record. It is better and appropriate to reproduce section 20 of the Punjab Pre-emption Act, 1991 to resolve the controversy between the parties:-- "20. Where the pre-emptor and vendee equally entitled.--- 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."

7. The said section was interpreted by the Lahore High Court in Feroze Khan's case supra. The relevant paragraphs are reproduced herein below:--- "Instant civil revision arose from out of a pre-emption suit. It raised an important and interesting proposition of law relating to interpretation of section 20 of Punjab Pre-emption Ordinance/ Act, 1991, governing the mode of distribution of pre-emptive property, between equi-classed pre- emptors, and vendees. Section 20 of the Pre-emption Ordinance/Act was unlike its predecessor section 17 of Punjab Pre-emption Act, 1913.

Relevant facts are.--- Noor Khan owned 39 Kanals 5 Marlas of land at Mauza Lawa of Tehsil Tallagang, District Chakwal. By Mutation No.2260 sanctioned on 10-1-1990, he sold it to Ahmad Yar for a consideration of Rs.1,20,000. Four persons, namely Feroze Khan, Waris Khan, Ahmad Khan and Muhammad Khan sons of Mehar Khan pre-empted above sale. Pre-emption was claimed on the grounds of being co-sharers in the land sold, participators in immunities and, contiguity, i.e. Shafi Shareek, Shafi Khalit and Shafi Jar. Price paid for the land in dispute was disputed."

Section 20 embodied a rule of Islamic Law, that in case of plurality of persons having equal right of Shuffa, the property shall be distributed per capita among them equally. As the preemptors were four in number poised against a sole vendee, they shall be entitled to 4/5th share 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 and the vendee found recognition in a celebrated judgment of Allahabad High Court in case of Amir Hassan (plaintiff) v. Rahim Bakhsh and others (defendant) ILR 19 All. 466. Rule laid down in the above case firmly held the field in Allahabad High Court as well as Bombay High Court. Further, it was followed by Assam High Court, in case of Ladhi Bibi and others v. Masaddar Ali Chaudhry and others AIR (36) 1949 Assam 81. Reference to para.13 of the above judgment shall be helpful. It reads:--- "Vendees are not co-sharers in Patta No.34. Plaintiff, therefore, is entitled to pre-empt the lands of this Patta to the exclusion of the vendees. As regards lands of Pattas Nos.54 and 107; plaintiff has been given a decree for half. But this is not according to law. Plaintiff and the three vendees are full co-sharers in the land. Their rights are equal and according to Mohammedan Law, they will be entitled to share the land equally between themselves. This view of he law admits of no doubt and Amir Hassan v. Rahim Bakhsh, 19 All. 466: 1897 AWN 118 is a clear authority that supports it. In these circumstances, plaintiff would be entitled to 1/4th of lands sold from Pattas Nos. 54 and 107."

I must concede, my respect for the celebrity of the illuminating judgment of the Allahabad High Court in case of Amir Hassan which greatly assisted me on a field which was yet not covered by an authority of this Court. Heretofore, division of the preemptive property was covered by section 17 of the Punjab Preemption Act, 1913, since repealed. Section 20 of the new Preemption Law fell for interpretation for the first time after its enforcement. There was no decided case from this Court on it. Decision in Amir Hassan's case was clearly in point and favoured the view of the trial Court. I am in respectful agreement with the view expressed in Amir Hassan's case and would prefer to follow it in the case under consideration."

8. The Lahore High Court followed the said judgment in Muhammad Hayat's case supra. The said Muhammad Hayat's case was followed in Muhammad Khan's case (supra). Section 20 of the N.- W.F.P. Pre-emption Act, 1987 was interpreted by this Court in Sar Anjam's case 1999 SCM R 2167 and laid down following principle:-- "The learned trial Court as also the learned Appellate Court seem to have not gone through the provisions of the Act at all. Had they done so, they would have noticed section 20 of the Act which provides in terms unequivocal 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."

9. Section 20 of the N.-W.F.P. Pre-emption Act was also interpreted by this Court in Kala Khan's case 1993 SCM R 543 and laid down the following principle:--- "The suit having been filed under the new law and the right of pre-emption having been claimed thereunder, the provisions thereof would compel as a new dispensation, the defendant/petitioner to share the property with the plaintiff to the extent of 50% each. Under section 20 of the N.-W.F.P.

Preemption Act, 1987 it was the command as well as intention of the law."

10. The said section was also interpreted by this Court in Abdul Hakeem's case 2003 SCM R 1501 and laid down the following principle:--- "Section 20 of the N.-W.F.P. Pre-emption Act raises purely a legal question to the effect that if on the basis of evidence it is found by the Court that both, the pre-emptor and the vendee, fall within the same class of pre-emptor and have equal right of preemption, the Court will grant a decree in equal shares."

11. The Lahore High Court had followed the aforesaid judgments while deciding the case under section 20 of the Punjab Pre-emption Act, 1991 in Haqnawaz's case 2006 YLR 3024.The relevant portion is as follows:--- "It will be seen that the term 'pre-emptor' and the 'vendee' has been used in singular. Needless to state that under the applicable Rules of interpretation contained in the Federal and the Provincial General Clauses Acts, singular includes plural and vice versa. Upon a plain reading of the said statutory provision where the pre-emptor (or pre-emptors) and the vendee (or vendees) fall within the same class of pre-emptor and have equal right of pre-emption, they shall share the property equally. In my humble opinion, the said provision of law does not contemplate two different classes rather only one class to which the pre-emptor as well as the vendees belong and that class is the one having equal right of pre-emption. In the present case, all the pre-emptors and the vendees belong to that very class of pre-emptors who are equipped with a right of pre-emption in equal terms i.e. that they are all co-sharers in the suit land at the time of sale. Thus, having become members of the said class having equal right of pre-emption, i.e. class of co-shares, they will share the property equally."

12.The Lahore High Court also followed the aforesaid judgments while rendering judgment in Muhammad Ali's case 2005 CLC 603. A Division Bench of Lahore High Court in Muhammad Yousaf's case 2002 YLR 3764 has laid down the aforesaid principle of law while interpreting section 20 in which one of us (Muhammad Sair Ali, J.) was a member. The relevant observation is as follows:--- "the total effort in enacting the Punjab Pre-emption Act, 1991 was to adopt the Islamic principles on the law of pre-emption, therefore one has to look to the Islamic notion of pre-emption and it is not difficult to find that under the Islamic law where the right of the pre-emptors and that of the vendees is adjudged to be equal, the property or the land forming subject-matter of the sale is to be shared by them equally. The legislature in its wisdom, therefore, incorporated this principle in section 20 of the Punjab Pre-emption Act so as to incorporate t4 complete intention of the principle of Islamic Law of Pre-emption. Need we refer to the preamble of the Ordinance which reads as follows:--- `Whereas it is expedient to re-enact the existing law relating to pre-emption so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur'an and Sunnah."

13. The Lahore High Court has taken the aforesaid view in Ghulam Muhammad's case 2004 YLR 1260. The legislature in section 20 had used following words:---

(i) Pre-emptor and the vendee fall within the same class of pre-emptors.

(ii) Have equal right of pre-emption.

(iii) Property shall be shared by them equally.

14. The record reveals that respondent had filed suits against the appellants and through the impugned judgment the learned High Court had decided two Civil Revisions Nos.555 of 2007 and 328 of 2007 by observing the dispute arose from the same cause and was between the same parties. Appellants had filed petition qua the judgment rendered by the High Court in Civil Revision No.328 of 2007 whereas appellants had not filed any petition against the judgment arising out of the Civil Revision No.555 of 2007. This fact was also verified from the office while dictating this judgment.

15. It is better and appropriate to reproduce relevant provisions of Punjab Pre-emption Act, 1991 to resolve the controversy between the parties:--- Preamble.--- Whereas, it is expedient to re-enact the existing law relating to pre-emption, so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur'an and Sunnah; Section 6.--- Persons in whom the right of pre-emption vests. (1) The right of pre-emption shall vest---

(a) Firstly, in Shafi Sharik;

(b) Secondly, in Shafi Khalit; and

(c) Thirdly, in Shafi Jar.

Explanation.--- (I). `Shafi Sharik' means a person who is a co-owner in the corpus of the undivided immovable property sold.

(II)`Shafi Khalit' means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation.

(III) `Shafi Jar' means a person who has a right of pre-emption because of owning an immovable property adjacent to the immovable property sold.

Section 7.--- Priorities in the right of pre-emption. Where there are more than one participators in the special rights attached to the immovable property sold, the person having a special right shall have precedence over a person having a general right.

Illustrations:

(a) A garden is irrigated by a watercourse which opens from a small canal. If this garden is sold, the person having right of irrigation from the watercourse shall have precedence over a person having right of irrigation from the canal. But if such garden is irrigated from the small canal, the person having right of irrigation from the watercourse as well as the person having right of irrigation from the canal shall have the right of pre-emption.

(b) Where there are more than one pre-emptors and one has right of passage and the other has right of passage of water attached to the immovable property sold, the person having right of passage shall have precedence over the person having right of passage of water.

A participator in the special rights having his property, on the basis of which he claims to be the pre-emptor nearer to the immovable property sold, shall have precedence over the pre-emptor having such property not so near to the immovable property sold.

Section 8. Joint right of pre-emption how exercised.--- Where a right of pre-emption vests in any class or group of persons, the right may be exercised by all the members of such class or group jointly, and if not exercised by them all jointly, by any two or more of them jointly, and if not exercised by any two or more of them jointly, by them severally.

Section 9. Method of distribution of property where more than one person are equally entitled.-- - Where more than one person are found by the Court to be equally entitled to the right of pre- emption, the property shall be distributed among them in equal shares.

16. Purpose, object and concept of law of pre-emption is that a stranger should not be allowed to purchase property in preference to persons who have the first right of purchase. The purpose and object of enacting Pre-emption Act, 1991 is to bring the provisions of law inconformity with injunctions of Islam as depicted from the preamble mentioned herein above. Preamble is a key to understand the Act which is always used to understand and interpret the provisions of Act keeping in view the preamble of the statute.

17. The concept is highligted by Aziz Ahmed in his book titled `Islamic Law in Theory and Practice' vide paragraph 463 which is reproduce hereunder:---

463. Pre-emption when vendee and plaintiff belong to the same category of pre-emptor.--- Where there are two or more persons have equal contingent right of pre-emption and a sale is made in favour of one of them, the others who have similar rights are entitled to claim pre-emption of their share. Their suit cannot be defeated on the ground that the vendee has an equal right of pre-emption.

Illustration 4 3 2 1 Private Street 5 6 7 8 The House No.1 is sold by its owner to the owner of the House No.2. The owners of the Houses Nos.3 to 8 have the right to pre-empt the sale, each is entitled to equally share the house with the vendee.

Illustration 2.--- A, B and C are co-shares in a house. A sells his share to B. C is entitled to claim pre-emption of one of the property.

18. The concept of Islamic law was discussed in 'Amir Hasan's case ILR 1897 All. 466. The relevant paragraphs are reproduced hereunder:--- "that the Mohammedan Law does not require that the claimant for pre-emption should have a preferential right, and that under that law, if the vendee and the pre-emptor have equal rights of pre-emption as against an outsider, the property should be divided between them in the same way in which it would have been divided between them had the vendee been a stranger and both of them had claimed pre-emption against him. The contentions that the rule laid down in Book XXXVIII, Chapter I, of the Hedaya (Vol. III, page 566) that "when there is a plurality of persons entitled to the privilege of Shaffa the right of all is equal" is as much applicable when the purchaser is a person having the right of pre-emption as when he is a stranger" ....... "the right of pre-emption "could, under Mohammedan Law only, be against strangers or third parties not coparceners"....

"As, according to the Hedaya, the object is "to prevent the vexation arising from a disagreeable neighbour".... It is settled law that where the vendee is a stranger and more persons than one have the right of pre-emption, and one of those persons is absent "decree is to be given to those. who are present, according to their number. But if, after decree of the whole to one who is present, a second should appear, half is to be decreed to him, and if a third should appear, decree is to be given to him for a third of what is in the hands of each of other two."....

"It is, according to Mr. Justice Ameer Ali, "a work of great authority and merit." (Mohammedan Law, Introduction, page 20), and the learned author of the Tagore Law Lectures for 1873 refers to it as "a work of great celebrity" (page 46). It says---"When two persons purchase a house and both are pre-emptors and then appears a third pre-emptor after division has been made under a decree or otherwise, he, that is, the pre-emptor, can have the division cancelled, because what was a half, has now become one-third (Sharah wah-baniya)." (f)

"These texts, the authority of which has not been questioned by Mr. Abdul Majid on behalf of the respondents establish, as we have said two propositions; first, that even when the buyer is himself a pre-emptor, that is, a person who would have the right of pre-emption against an outsider, other persons having a similar right of pre-emption are entitled to claim pre-emption against the buyers; and, secondly, that in such a case the rights of the claimants to pre-emption should be determined in the same way in which they would have been determined, had the buyer acquired the property by enforcing his right of preemption against a stranger, in the absence of the other preemptor and the absentee pre-emptors had appeared subsequently and claimed pre- emption. In this view, as all persons having equal light of pre-emption are only entitled under the Mohammedan Law to divide the property equally per capita, and as the purchasers in this case are two in number, the plaintiff appellant is entitled to only a third share of the property sold."...

We do not think we should be justified in applying those rules in a mutilated form and we are of opinion that in cases of preemption we should apply the Mohammedan law, where it is not inconsistent with the principles of justice, equity and good conscience. "

As, however, the vendees have equal rights of pre-emption with him and they are two in number, the plaintiff would be entitled to only a third share of the property on payment of one-third of the sale price, provided that he has complied with all the requirements of Mohammedan Law."

19. The other cases on the subject are as follows:--- 2006 M LD 625 at 628 Muhammad Arif Khan's case: " According to my humble estimation section 20 of the Punjab Pre-emption Act, 1991 admits no other interpretation except that all the vendees with equal superior pre-emptive right qua the pre- emptor, will independently share the suit property, hence in the instant case vendees being two and pre-emptor being alone, the suit-land was correctly divided into three parts"

2006 M LD 735 (Peshawar) at 737 and 738 Abdul Latif's case:--- "In the provision of section 20 of the Act ibid, the words preemptor and vendee have been used in singular and not in plural and it was in this context that reference has been made to equal division of property if both are possessed of equal right of preemption. However, section 9 of the Act 1987 ibid, add to and supplement the provision of section 20 of the Act which is reproduced below:--- "Section 9. Method of distribution of the property where more than one person are equally entitled....

Where more than one persons are found by the Court to be equally entitled to the right of pre- emption, the property shall be disturbed among them in equal share."....

"To ensure fairplay, principle of justice and rule of propriety therefore demands that the numerical strength of the pre-emptor or that of the vendees would require the Court to distribute the property equally by per capita so that each one is placed in the same position in which the other is placed otherwise division of the suit property as proposed by the learned counsel for the petitioner on the pattern half and half between the three preemptors and the solitary vendee would cause miscarriage of justice attracting the element of discrimination, disparity and unequal treatment before law of the person similarly placed and possessed of independent and individual right of pre-emption, moreso, when the statutory law itself has created no exception in this regard."

2005 YLR 197 (Lahore) at 199 and 200 Muhammad Nawaz's case: "(7) Section 20 of the Punjab Pre-emption 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 20 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 pre-emptor and vendee/defendant falling in the same class have equal right of pre- emption and the property shall be shared by them equally."...

"(9) The words '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 preemptors shall distribute the land equally amongst themselves as a class.

As against this section 20 of the Act provides that two classes of pre-emptor and vendee will share equally.

(10) In the instant case, sole vendee is confronted by plaintiffs two in numbers. All are co-sharers.

Whether the land will be distributable to them per capita with 1/3rd share each or preemptor and vendee as distinct class will share in equal shares, 1/2 each. The honourable Supreme Court has taken the view that, if the pre-emptor and vendee fall in the same class they will share equally."

2006 YLR 3024 (Lahore) at 3027 Haw Nawaz's case: "It will be seen that the term 'pre-emptor' and the 'vendee' has been used in singular. Needless to state that under the applicable rules of interpretation contained in the Federal and the Provincial General Clauses Acts, singular includes plural and vice versa. Upon a plain reading of the said statutory provision where the pre-emptor (or pre-emptors) and the vendee (or vendees) fall within the same class of pre-emptor and have equal right of pre-emption, they shall share the property equally. In my humble opinion, the said provision of law does not contemplate two different classes rather only one class to which the pre-emptor as well as the vendees belong and that class is the one having equal right of pre-emption. In the present case, all the pre-emptors and the vendees belong to that very class or preemptors who are equipped with a right of pre-emption in equal terms i.e. that they are all co-sharers in the suit-land at the time of sale. Thus, having become members of the said class having equal right of pre-emption, i.e. class of co-sharers, they will share the property equally. This is how the similarly worded provisions of section 20 of the N.-W.F.P.

Pre-emption Act, 1987, were interpreted in para.21 in the case of Sar Anjam v. Abdul Raziq 1999 SCM R 2167. To similar effect is the dictum in the case of Kala Khan v. Ayub Khan 1993 SCM R 543.

Earlier dictum of this Court in the cases of Muhammad Hayat v. Faiz Ali and another 2002 M LD 938 and Feroze Khan and 3 others v. Ahmad Yar 1992 M LD 1570 is to the similar effect.

(7) Now applying the said test to the present case, the two vendees and the three pre-emptors shall share the land in the following order:--- Petitioners 2/5 Respondent No.1 1/5 Respondents Nos.2 and 3 2/5 AIR (36) 1949 Assam 81 Ladhi Bibi's case: "Plaintiff and the three vendees are all co-sharers in the land. Their rights are equal and according to Mohammedan Law, they will be entitled to share the land equally between themselves. This view of the law admits of no doubt and Amir Hasan v. Rahim Baksh, 19 All. 466: (1897 AWN 118) is a clear authority that supports it. In these circumstances plaintiff would be entitled to 1/4th of lands sold from Pattas Nos.54 and 107."

1999 SCM R 2167 at 2179 Sar Anjam's case: "(21) The learned trial Court as also the learned Appellate Court seem to have not gone through the provisions of the Act at all. Had they done so, they would have noticed section 20 of the Act which provides in terms unequivocal 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."

20. In Muhammad Tariq's case 2009 SCM R 240 questions raised by the learned counsel of Muhammad Tariq as noted in para.6 therein included the question of per capita sharing as well and this question relevant in the present case was answered as under:-- "(9) Now coming to the next point whether the decreed property should be divided on per capita basis or on equal basis. The case-law favours that the property be divided in equal shares i.e. 1/2 each. Anyhow, in order to further strengthen the same, we would scrutinize the very words of section 20 of the Punjab Preemption Act, 1991 which is reproduced hereunder:--- "(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."

A bare reading of the text of above section clearly shows that the legislature has divided the pre- emptor and the vendee into two distinct classes i.e. the pre-emptor and the vendees, and if the pre-emptor and the vendee have equal right of pre-emption the property would be shared by them equally notwithstanding the number of pre-emptors or the vendees. If we follow the other version of per capita basis then the whole sense of the section would altogether be damaged.

Uptill this time, all the rulings of this Court are in favour of the division of the property in equal shares i.e. 50/50 or 1/2 each because the contesting parties are two different classes, so keeping- in view this principle the impugned judgment of the High Court is plainly correct and needs no interference."

21. It is proper to reproduce relevant issue and findings of the Courts below which are to the following effect:---

(i) Issue No.4.

Whether the plaintiff has superior right of pre-emption qua the vendees/defendants? OPP

(ii) Findings on Issue No.4 by the trial Court.

"It is needless to say that as per law a legal heir accrues his title at the death of his predecessor-in- interest and is not subject to the sanction of the mutation and even though mutation of inheritance of Mst. Alam Khatoon deceased has not been sanctioned till now but mere this fact does not disentitle the defendant to claim the title being co-sharer in the suit property so this Court is of the view that both parties to the suit are co-sharer in the suit property. In so far as claim as to Shafi Khaleet and Shafi Jaar is concerned it is neither pressed, by the parties nor adduced any evidence in this regard by the parties so to this extent, the claim is dismissed accordingly. As onus probandi of this issue was on the plaintiff hence this issue is decided in negative."

(iii)Findings on Issue No.4 by the First Appellate Court.

"In this view of the matter the vendees/defendants being the sons of Alam Khatoon became co- sharers in the Khata on her death much before the sale in question and thus they too have an equal right of pre-emption qua the plaintiff/pre-emptor in respect of the transaction in question.

Hence, there is no justification to disagree with the findings of the learned trial Court recorded under issue No.4 and the same are upheld."

(iv)Findings on Issue No.4 by the High Court.

"It is so evident from Jama Bandi Exh.P.3 for the year 2002-03, thus the respondents too have a right in the disputed land as recognized by section 20, therefore, the findings of the learned lower Courts on issue No.4 is unexceptionable and resultantly upheld.",.

22.It is settled principle of law that right of pre-emption is a defeasible right as a matter of fact keeping in view the ground realities and historical perspective of the law of pre-emption and can be defeated by permissible means. Meaning thereby the provisions of Pre-emption Act are to be construed strictly and conservatively because the law of pre-emption constitutes a draw back on the principles of freedom of contract and security of title and as such its provision should be construed and applied strictly against discretion conferred upon the Court by any provision of law and should be exercised with the greater care. This is a fundamental distinction of pre-emption law with other laws of the land. It is a special law having a specific features, therefore, its provisions' by all means to be construed strictly in terms of the object of framing the pre-emption law as depicted from the preamble of the Act (Punjab Pre-emption Act, 1991).

23.In Muhammad Tariq's case supra, contentions raised by the learned counsel as noted in para.6. Precedents were also noted in paras. 6 and 7 but the learned Judges had given conclusions in para.9. The same is result of per-incurrium as the conclusion is not in consonance with the provisions of section 20 of the Pre-emption Act. The following are three basic ingredients of every decision:--

(a) Findings of fact both direct and inferential.

(b) Statement of principles of law applicable to the legal terms disclosed by the facts.

(c) The judgment passed on the combined effect of the above ingredients.

A decision of apex Court is binding only when it fulfils the following three conditions:---

(i) It decides a question of law.

(ii) It is passed upon the basis of law.

(iii) It enunciates a principle of law.

Mere mentioning the precedents in the judgment without G adverting to the ratio laid down in the cited judgments raises questions than resolving the same.

24. The only precedent case on the subject is Amir Hasan's case supra. The learned Bench of this Court in Muhammad Tariq's case supra had held that legislature has divided the pre-emptor and the vendee into two distinct classes i.e. the pre-emptor and the vendee. It is not in consonance with the provisions of section 20. It is the qualifications of the vendee which qualified him to take the share of the property in terms of section 20. The law laid down in the case of Amir Hasan and other cases had been mis-understood in Muhammad Tariq's case by this Court.

25. We are of the view that the law laid down in Amir Hasan's case and other cited judgments, mentioned hereinabove, is the correct law.

26. It is a settled proposition of law that Courts have only power to interpret the law as laid down by this Court in various pronouncements. See Zia-ur-Rehman's case PLD 1973 SC 49. In the garb of interpretation, the Courts have no power to add or omit even a single word from the provision of law. In Muhammad Tariq's case supra by holding that pre-emptor and vendee are two distinct classes, the distinction between the pre-emptor and vendee is not based on any legal, valid reason or logic or mandate of section itself.

27. In view of what has been discussed above the appeal is allowed by holding that parties are entitled to share the property on the principle of per capita. The revisional judgment of the High Court dated 10-10-2008 passed in CR No.328 of 2007, judgment and decree dated 18-10-2006 of learned District Judge, Mianwali in Civil Appeal No.68 of 2006 and judgment and decree dated 9- 6-2006 of learned Civil Judge, Mianwali in Civil Suit No.175 of 2005 are set aside to the extent of mode, manner and measure of sharing the suit property by the parties under section 20 (ibid) of the Act, 1991. As adjudged hereinabove, the parties are entitled to share the suit property per capita; each shall get 1/3rd. The two appellants/vendees and one respondent/plaintiff-preemptor shall each be entitled to 1/3rd share of the property on payment of 1/3rd of the sale price by the respondent/plaintiff-pre-emptor who is also held to be entitled to the refund of excess amount if deposited by him. The judgments and decrees are modified as above. Because of the complexity of the legal issue, there shall be no order as to costs.

(Sd.)

Ch. Ijaz Ahmed, J A separate note added in amplification of the reasons and conclusion hereinabove recorded.

(Sd.)

Muhammad Sair Ali, J MUHAMMAD SAIR ALI, J:--- Respectfully agreeing, with the conclusion and the reasons recorded by my learned brother Ch. Ijaz Ahmed, J, I have humbly endeavoured to amplify the reasons through this note in view of the importance of the subject-matter.

2. The controversy requiring resolution herein is as to whether under section 20 of the Punjab Pre- emption Act, 1991 (hereinafter called as 'Act' 1991), the two appellant vendees (the suit defendants) were eligible to share the suit land with the sole respondent/plaintiff pre-emptor equally on per person basis i.e. per capita in the proportion of 1/3rd for each person OR equally on per party basis i.e. 1/2 for each party.

3. Section 20 of the Act, 1991 prescribes that to enjoy the right of sharing property equally pre- emptor(s) and the vendee(s) must;

(i) be from the same class of pre-emptors; and

(ii) have equal right of pre-emption These two qualifications are not the subject matter of this appeal and no submissions were made thereto by the learned counsel for the parties. Adequate to state that the vendee(s) when fictionally interposed as the pre-emptor(s) must possess the same class and an equal right of pre-emption that the plaintiff pre-emptor possesses to bring the pre-emption suit.

4. The legal proposition herein is the mode, the manner and the measure of sharing property by the Pre-emptor(s) and the qualified vendee(s) under section 20 (ibid). The proposition has arisen from the words "property shall be shared by them equally". What does the word "equally" connote in the context of section 20 of the Act, 1991. Should equal distribution of the suit property be party- wise between the pre-emptor(s)/plaintiff(s) and the vendee(s)/defendant(s) OR person-wise between all the plaintiffs and all the defendants on one stock basis. In the case of one pre-emptor plaintiff and one qualified vendee/the defendant, no difficulty will arise. They will share the property as pre-emptor and vendee in equal proportion i.e. 1/2 for each. However plurality of pre-emptors or the vendees will raise the issue for determination. Should all the pre-emptors/plaintiffs and the vendees/defendants be pooled in as the entitled individuals for sharing the property alike by the heads on per capita and pro rata basis without reference to them as the representative groups or their stocks, as against per stirpes; wherein a class or a group takes his given share as such' class or group and not as the individual. The comparative example for clarifying the distributive methods can be drawn from stirpital succession and per capita distribution amongst heirs of a deceased under the Mohammedan Law. Stirpital succession is based on the principle of representation where division of the estate is according to the stocks or groups and not according to the claimants who inherit on per capita basis in their own individual right.

5. To my understanding of section 20 (ibid), the suit property prescribed to be "shared equally by them" cannot be interpreted to refer to the representative groups as the pre-emptor/plaintiff party or the vendee/defendant party. Had it been so intended, the legislature would have so legislated or defined in section 20 (ibid) and thus clarified its intention in the domain of substitutive rights like the pre-emption. The words used in section 20 are "pre-emptor" and "vendee" wherefor I infer therefrom that the term "them" refers to the pre-emptor(s) and the vendee(s) as individuals. This interpretation of the section is in conformity with the injunctions of Islam and thus the object of the preamble as well as the scheme of the Act, 1991 as discussed by my learned brother (Ch. Ijaz Ahmed, J.).

6. The word equal or "equally" as employed in section 20 (ibid) when literally examined dispels the impression of meaning two even halves at all times and in all cases. It also means the same in size, amount or value'(Chambers 21st Century Dictionary) or 'alike,' uniform, on the same level of efficiency, worth, value, amount or rights (Black's Law Dictionary 6th Edition). So the persons eligible to share equally are also those who are given uniform or same size shares as in the case of equal distribution of estate in inheritance say between the sons as a class or the daughters as the other class according to their prescribed shares respectively.

This distributive formula also finds support from sections 8 and 9 of the Act, 1991 as well. Under section 8, the right of pre-emption can be exercised by the entitled pre-emptors jointly or severally.

If exercised severally and individually, each pre-emptor, in his legal action or otherwise, will be entitled to share property with the qualified vendee equally. And if several actions/claims are brought by several such preemptors separately, all of them will be equally entitled to share the property sold with the qualified vendee(s) on equal basis i.e. per capita and pro rata between all the pre-emptors and all the vendee(s) enstock like the method of distribution prescribed in section 9 (ibid), whereunder for more than one person found equally entitled to the right of preemption, the property is to be "distributed among them in equal shares". As such in a joint suit/action of many pre-emptors against many vendees, same formula has to be followed for coherent interpretation and reasonable meaning of sections 8, 9 and 20 (ibid) read together with the whole scheme of the Act, 1991. Any other view/interpretation may lead to irreconcilable anomalies.

7. The celebrated judgment, probably maiden in the field, by an honourable Division Bench of Allahabad High Court in Amir Hasan v. Rahim Bukhsh and others ILR 19 All. 466 [1897], articulately and educatively analyzed the provisions of Mohammedan Law on the division and distribution of the property under a pre-emptible sale between the pre-emptor(s) and vendee(s). The case therein was almost identical to the case in hand. Reference extracts from this judgment have been reproduced extensively in the opinion of my learned brother i.e. Ch. Ijaz Ahmed, J. The doctrine of non-availability of right of pre-emption in the case of co-parceners was departed from (as also the opinion on the subject by Mr. Justice Amir Ali in his work on Mohammedan Law). It was held that it "leaves no room for doubt that the right of pre-emption may, under that law, be enforced against a purchaser who is not a stranger, but is a person who could equally with the plaintiff have claimed pre-emption against a stranger. The above rule applies and determines the right of pre- emption, even when the purchaser is a pre-emptor, that is, a person who would have the pre- emptive right as against a stranger. It is in this sense that the word appears to have been used in the .... texts of Mohammedan Law which have been cited to us, and which seem to us to be conculsive on the point:--- In this view, as all persons having equal right of pre-emption are only entitled under the Mohammedan Law to divide the property equally per capita, and as the purchasers in this case are two in, number, the plaintiff/appellant is entitled to only a third share of the property sold. As, however, the vendees have equal rights of pre-emption with him and they are two in number, the plaintiff would be entitled to only a third share of the property on payment of one-third of the sale price, provided that he has complied, with all the requirements of Mohammedan Law". (underline provided).

8. In the case of " Ladhi Bibi and others v. Masaddar Ali Chaudhry and others" AIR (36) 1949 Assam 81, honourable Division Bench of the Court followed Amir Hasan's case and adjudged that one plaintiff and three vendees were co-sharers in the land (like the present case with one pre- emptor/plaintiff and two vendees/defendants) and each of the four persons would be entitled to 1/4th share of the land sold because "their rights are equal and according to Muhammadan Law, they will be entitled to share the land equally between themselves" (underline provided).

9. On the strength of the above-adjudged rule, following judgments were pronounced by the High Court in Pakistan i.e. Feroze Khan and 3 others v. Ahmad Yar 1992 M LD 1570, Muhammad Hayat v.

Faiz Ali and another 2002 M LD 938, Ghulam Haider v. Ahmad Khan and another 2004 YLR 1260, Muhammad Nawaz v. Ahmad Khan and another 2005 YLR 197, Abdul latif v. Shaukat Ali and 2 others 2006 M LD 735, Haq Nawaz and another v. Bashir Ahmad and 2 other 2006 YLR 3024, Muhammad Khan and 9 others v. Ameer Khan Gaddi Balloch 2008 YLR 296.

10. In the case of Abdul Latif (supra) Peshawar High Court does incorporate the principle of per capita distribution under section 20 (ibid), yet adds certain riders (probably as ()biter dicta) which to us appear to be extraneous in the absence of source and cogent reasoning.

11. This Court also ruled on the sharing of property equally by the qualified vendee and the pre- emptor under section 20 (ibid) and the N.-W.F.P. Pre-emption Act. The question of plurality of the plaintiff pre-emptors or defendant vendees and mode of sharing the sold property between them individually was not raised for decision before this Court.

In Sar Anjam v. Abdul Raziq 1999 SCM R 2167 and in the case Shakirullah v. Aminullah CP.573 of 1997, the suit for possession through pre-emption had one pre-emptor plaintiff against one defendant vendee. Similarly in the case of Kala Khan v. Ayub Khan 1993 SCM R 543, single pre-emptor sued single vendee as also in the case of Sarfraz Khan v. Niamatullah Khan 2002 SCM R 751. However, in the case of Abdul Hakeem and others v. Khalid Wazir 2003 SCM R 1501, though plurality of parties existed but the method of sharing the sold property on per capita basis was neither raised nor discussed nor determined.

12.In Muhammad Tariq and 4 others v. Asif Javed and another 2009 SCM R 240, an honourable Division Bench of the then judges of this Court referred to many of the above discussed cases while recording submissions of the contending counsel but without referring to the principles settled therein, rejected the mode of distribution of land per capita in para.9 of the judgment by observing that:-- "Now coming to the next point whether the decreed property should divided on per capita basis or on equal basis. The case-law favours that the property be divided in equal shares i.e. 1/2 each. ---A bare reading of the text of above section clearly shows that the legislature has divided the pre- emptor and the vendee into two distinct classes i.e. the pre-emptor and the vendee, and if the pre- emptor and the vendee have equal right of pre-emption the property would be shared by them equally notwithstanding the number 'of pre-emptors or the vendees. If we follow the other version of per capita basis then the whole sense of the section would altogether be damaged. Uptil this time, all the rulings of this Court are in favour of the division of the property in equal shares i.e. 50/50 or 1/2 each because the contesting parties are two different classes, so keeping in view this principle the impugned judgment of the High Court is plainly correct and needs no interference.

Hence the appeal is dismissed."

13.It appears that the facts of all the referred cases as well as the principles settled therein escaped the attention of the Court while observing that "the case law favours the property to be divided in equal shares i.e. 1/2 each" or "uptill this time, all the rulings of this Court are in favour of the division of the property in equal shares i.e. 50/50 or 1/2 each because the contesting parties are two different classes". It was an over simplified statement of the precedent law and the rule adjudged therein. We have analyzed and discussed all the above referred cases to obviate the possibility of an error or misinterpretation and have also recorded our opinions separately. We cannot subscribe to the view that "all the rulings of this Court are in favour of division of property in equal shares i.e. 50/50, 1/2 each because the contesting parties are two different classes ". None of these observations arises from the case law referred to even in Muhammad Tariq's case or the principles of the Mohammedan Law recorded in various treaties and quoted in the case of Amir Hassan (ibid).

14.In view of the above, it is held that the appellants and the respondent are entitled to share the property equally pro rata on per L capita basis. Appeal is thus accepted in terms of the above- recorded conclusion.