' The facts giving rise to the present appeal may be briefly stated :- ' On 18-12-1973 the respondent filed a suit for possession of land measuring 100 kanals, situate in Mauza Milkan Hans, Tamil Lodhran, District Multan as described in the plaint, by way of the exercise of superior right of pre-emption. There are two sales involved which may also be described: Under the first sale which was evidenced by Mutation No, 32 attested on 20-12-1972 Muhammad Aslam had sold the above land for a consideration of Rs, 25,000 to Mst. Gharibi. This mutation was duly entered in the Roznamcha waqiati vide Report No, 191 dated 22-12-1972. Mst. Gharibi sold this land in favout of Muhammad Bakhsh, Rahim Bakhsh, son of Ahmad Bakhsh, Allah Yar and Muhammad Aslam appellants vide Mutation No, 33 attested on 20-12-1972. Qutabuddin the original plaintiff- respondent No. 1 filed a suit to pre-empt the second sale baring his superior right as owner in the estate and co-sharer in the khata. The appellants contested the suit by setting up an equal rights of pre-emption being the owners in the estate, being co-sharers in the khata. It was also claimed that they were the tenants in the land in dispute and as such had the first right of pre-emption. On the pleadings of the parties the following issues were framed :-
(1) Whether plaintiff has waived his right by his conduct ? 0. P. D.
(2) Whether description of suit-land is not correct ? 0. P. D.
(3) Whether deficiency of court-fee was not made up within time ? O. P. D.
(4) Whether suit is time-barred ? 0. P. D.
(5) Whether plaintiff has a superior right of pre-emption ?
(6) Whether sum of Rs, 25,000 was paid in fact or not fixed in good faith ? O. P. D.
(7) If not what was the market value of the suit land ? 0. P. Ps.
(8) Relief.
2. The trial Court decided all the issues against the appellants and as a result of its findings on Issues Nos. 5 and 6 on merits the suit was decreed in favour of original respondent No. 1 on payment of Rs, 25,000 after the deduction of 1/5th amount. This finding was upheld and the learned Additional District Judge, Multan dismissed the appeal filed by the present appellants vide his judgment dated 19-7-1978. The appellants have only challenged the findings of both the Courts below on Issue No, 5 relating to the superior right of pre-emption of Qutabuddin deceased plaintiff.
3. The trial Court treated the suit for pre-emption filed by the original plaintiff as relating to the first transaction whereby Muhammad Aslam had sold the land in dispute to Mst. Gharibi under Mutation No,
32. Mst. Gharibi was admittedly not an owner in the estate or a co-sharer in the khata.
As regards the contention of the appellants that the subsequent sale being in recognition of their superior right of pre-emption the same was not considered by the trial Court. Though the contention was not repelled in so many words and the observation of the trial Court in this behalf may be quoted below: "In this respect I submit that the sale in their favour is not in dispute. They can, therefore, not claim any superior right. With these observations the issue is decided in affirmation."
' Issue No, 5 was also dealt with by the lower appellate Court in a very scanty manner in the following words :- "So far as Issue No, 5 is concerned, the finding of the lower Court cannot be interfered with because the appellants cannot claim their superior right in the presence of Exh. P. 3 and specially in the circumstances when the sale in their favour is not in dispute."
4. In view of the above finding the following questions arise fodetermination in the present appeal.
(1) Whether the sale made by Mst. Gharibi in favour of the appellants had no relevancy to the suit filed by the original plaintiff?
(2) Whether the appellants had a superior right of pre-emption as compared to Qutabuddin deceased plaintiff?
5. A perusal of the plaint would show that both the sales had been mentioned in paragraphs 1 and
2. In respect of the second sale evidenced under Mutation No, 33, it was indicated that the second sale was fictitious and collusive and had been made only to cause harm to the rights of the plaintiff-pre-emptor. The appellants were shown to have been impleaded as a party only on that account. Impliedly the superior right of the appellants was admitted and it can be presumed that the original plaintiff could not compete with the appellants. In paragraph 5 of the written statement the appellants claimed superior right as being in possession of the land as cultivators. They also claimed to be sharers in the khewat. As already noted above no specific issue was framed on the superior right of the appellants as the question had not been contested and for all intents and purposes the suit was treated as one against the first sale. Qutabuddin plaintiff appearing as P. W.
1, in cross-examination, denied his knowledge as to the appellants being khatedars. In the case reported as Fateh Bibi v. Ahmed Khan (1), it was held that a sale made during the pendency of th suit by the vendee in favour of a person possessing a right of pre-emption equal to that of the pre- emptor was not hit by the rule of !Is pendens and the purchaser can successfully defend his title on the ground of his pre-existin right, in case it is equal or superior to the pre-emptor. It was further observed that the resale does not vest any new rights and all that the subsequent vendee in such a case is to take the bargain in the assertion of his pre-existing pre-emption right. The principle is based on the fact that a A person possessing a superior right of pre-emption to the pre-emptor instead of buying a suit property privately brings a pre-emption suit in respect of the same property his suit will succeed and the pre-emptor will be non-suited. Subsequently, there is no cogent reason why the same result should not follow in case such a person instead of bringing a pre-emption suit buys the suit property out of Court from the first vendee. It is also will-established that a vendee may sell to a person who has an equal right {{FOOT NOTE}}
(1) PLD 1971 Lah. 171 {{FOOT NOTE}} with the pre-emptor or who has a superior right to the pre-emptor, ante litem, so as to defeat the pre-emptor's claim provided the transaction is genuine. ##TE#This being so, it will be inequitable to permit a pre-emptor to defeat a person who has a superior right of pre-emption and to whom the suit property is re-sold within the period of limitation, simply because the pre-emptor rushes to Court immediately after a sale is effected. The observations of the Division Bench in the above- cited judgment are fully attracted to the facts of the present case. The question involved in the present suit was a contest between the appellants and the original plaintiff and not between the original plaintiff and Mst. Gharibi. The appellants had specifically set up their superior rights and on the contrary the original plaintiff had treated the second transaction to be fictitious and collusive having been made only to defeat his rights. I would have decided the whole case but there is no evidence on these two important aspects of the matter. Though I may say that the equal or the superior right of the plaintiff was in a way admitted.
6. As the findings on issue No, 5 are not based on the correct appreciation of law. I have no option other than to accept this appeal, and remand the case under Order XLI, rule 23-A, C. P. C. The judgment B and decree of both the Courts below are hereby set aside and the case I remitted to the trial Court for fresh decision on Issue No, 5 keeping in view the real controversy between the parties in the light of the judgment referred to above. The trial Court shall be at liberty to frame any additional issue relating to the equal or the superior rights of the appellants and the bona fide nature of transaction as alleged by the original plaintiff in the plaint. However, in the circumstances of the case there will be no order as to costs.