' SALAHUDDIN PANHWAR,J.--- The applicants have assailed the Judgment and decree dated 18th December, 2010 and 23rd December, 2010, respectively, delivered by learned 7th Additional District Judge, Hyderabad in Civil Appeal No.156 of 2010 "Re: Munawar Ahmed v. Dr. Safdar Hussain and another" whereby the order dated 20th May, 2010; passed by learned trial Court i.e. 5th Civil Judge, Hyderabad; under Order VII, Rule 11, C.P.C., was set aside, with direction to the trial Court to decide the suit after recording evidence.
2. Succinctly, relevant facts of the case are that the respondent/ plaintiff instituted a T.C. Suit for pre-emption against the petitioners/defendants pleading therein that petitioner No.2 is owner of 8- 14 acres out of S.No.168 (8.34 acres) situated in Deh Halepota, Taluka Hyderabad, while respondent is owner of remaining 0-20 ghunta land out of same survey number. Petitioner No.1 purchased land in question from petitioner No.2 for a consideration of Rs.25000/- through registered Sale-deed No.233 dated 13-7-2007. The respondent came into knowledge of sale on 30-8-2007; through his brother Masroor Ahmed. On hearing about the sale, he then and there uttered that he has a right of preemption in suit-land and by exercising same he will purchase the suit-land in the same sale consideration. On next day respondent with two witnesses namely Muhammad Yousuf and Noor Muhammad approached to the petitioner No.1 at his Otak situated in Deh Norai where he asked petitioner No.1, in presence of witnesses that he has a right of preemption in suit-land as co-sharer and on knowledge about sale of suit-land he has already made Talb-e-Muwasibat then and there and has been making Talb-e-Ishhad in presence of the witnesses that he is prepared to purchase the suit-land in same sale consideration in which petitioner No.1 has purchased land from petitioner No.2, therefore, petitioner No.1 should re-sale the suit-land to him on receiving same sale consideration but such demand was refused. The respondent claimed himself to be Shaf-i-Sharif, Shafi-i-Khalit and Shafi-i-Jar, while that petitioner No.1 is stranger so he filed the instant suit.
3. Record further reveals that pursuance to the summons, issued by the trial Court, the petitioners caused appearance and filed joint written statement; they also filed an application under Order VII, rule 11, C.P.C., but same was dismissed by the trial court. Later filed another application for rejection of plaint on the ground that cause of action has ceased as vender (petitioner No.2) filed suit for cancellation of sale-deed against vendee (petitioner No.1) thereafter by compromise judgment dated 27-1-2010 and decree dated 1-2-2010 (FC Suit No.9 of 2010 "Re-Mir Muhammad v. Province of Sindh and others), sale-deed is declared cancelled and suit-land stand revived in favour of original owner. The learned trial Court rejected the plaint of respondent while holding that on mutual cancellation of sale-deed, cause of action to respondent, no more, continues.
4. Learned counsel for the petitioners has argued that suit of the plaintiff/respondent stood not sustainable on cancellation of the sale-deed by a competent court of law; the judgment and decree of the learned appellate court is unwarranted under the law; the right of pre-emption should necessarily continue from date of sale till date of decree and since in the instant suit the cause was not continuing hence the suit of the plaintiff/respondent was rightly rejected; he added that since sale-deed is not in existence hence responded/plaintiff has no cause of action rid suit ' had become infructuous thus judgment of the appellate court is against the settled norms of pre- emption law. In support of his contentions, he has relied upon the citations, 2013 MLD 470 (Principal, Government Mumtaz College, Khairper and another v. Badruddin and others), PLD 2013 Lah. 30 (Noor and others v. Mst. Sattan through legal representatives and others), 2013 MLD 31 (Muhammad Refique v. Muhammad Shafique and others), 2013 MLD 579 (Muhammad Hanif and others v. Muhammad Iftikhar Ahmed), 2013 SCMR 866 (Allah Ditta through L.Rs. And others v.
Muhammad Anar).
5. On the other hand, learned counsel for the plaintiff/respondent argued that second suit on same cause of action was not sustainable under the law hence rejection of the plaint was not legal; suit for cancellation of deed decreed within two hearings is sufficient to prove that both petitioners conjointly in order to defeat the legal right of respondent filed collusive suit; possession of the subject-matter property is still with the petitioner No.1; application under section 12(2), C.P.C., filed by respondent is pending before the court; hence the suit of the respondent/plaintiff was maintainable under the law; he placed reliance on the case-law, reported as 2008 SCMR 236 (Mrs. Anis Haider and others v. S. Amir Haider and others).
6. Heard learned counsel for the parties and perused the record.
7. From the perusal of pleading and judgments passed by lower court(s), it is surfaced that moot issue, requiring determination, is that:--- "Whether after filing of the pre-emption suit, any subsequent cancellation of sale-deed or re- transfer of title by the vendee will effect the right/cause of pre-emptor plaintiff. "
8. Before dealing with the above proposition, it would be pertinent to say that right of Shuffa is a special right hence the suit(s) for such right are not be treated as one filed for other rights, provided under the Specific Relief Act or other laws. The difference between the suit for pre- emption and other suit regarding maintainability is that in former the party only has to plead his status and that of having completed requisite formalities to claim title in exercise of right of Shufa while in the later the party not only has to establish his status but infringement or denial of any of his legal right or character; in former the question of cause of action has to be examined only within meaning of Principles of Mohammaden Law while in later within meaning of C.P.C. And other law(s), if applicable to such suit; in former only relief of re-convey is available for party while in later multiple relief's can competently be sought.
Hence, in suit (s) for pre-emption, the exercise of jurisdiction under Order VII, rule 11, C.P.C. Could only be invoked where the suit (plaint), does not prima facie establish category of pre-emptor and any failure in making compliance of demands, as required under Mohammaden Law.
9. Further, the right to claim the title by way of right of Shufa by the principles of Islam itself, has been confined for certain persons who qualify within meaning of:
(i) Shafi-i-Sharik i.e. a co-sharer in the property;
(ii) Shafi-i-Khalit i.e. a participator in immunities and appendages, such as a right of way or a right to discharge water;
(iii) Shafi-i-Jar i.e. Owners of adjoining immovable property.
' The principles further elucidate the degree(s) of the right of each of the above category because the first category excludes the second category and second category excludes third category.
Since the objective behind right of Shufa is nothing but to avoid introduction of a stranger, therefore, right of Shufa is an exception over absolute right of an owner of property to sell his/her property, which is otherwise, protected and guaranteed by other laws of the lands.
10. In simple words, any person, within rights of his/her category, can avoid introduction of stranger by getting the title of the sold property by proper and strict compliance of procedure provided for exercise of such right. Since the right of Shufa is getting the title from the stranger hence such right only accrues when there is a legal sale and not otherwise. This is so provided in section 232 of Principles of Mohammadan Law (D.F.Mulla's), which reads as under:--- "232. Sale alone gives rise to pre-emption.--- The right of preemption arises only out of a valid, complete, and bona fide sale .... The right of pre-emption arises not only out of a private sale, but also out of a sale by the Court or a receiver."
Thus from the above, it stood clear that it is the 'SALE' alone which gives right (a cause) to the above category to exercise right of preemption and not otherwise. As the "sale" is not defined in the Mohammaden Law, therefore, for such purpose it would be relevant to refer provision of section 54 of the Transfer of Property Act, 1882 which reads as under:---
54. "Sale Defined". "Sale" is transfer of ownership in exchange for a price or promised or part-paid promised.
Needless to add here, that an agreement to sale is not a sale within explanation, provided in the section 54 of the Transfer of Property Act, 1882, therefore, it is quite safe to that a contract for sale alone shall not give rise to right of pre-emption hence no suit for right of pre-emption can legally be entertained on basis of sale agreement.
11. Perusal of the Principles of Mohammadan Law (D.F. Mulla's) further makes me to refer the provision of section 233 thereof being relevant , which reads as under:--- "233. Ground of pre-emption must continue until the decree is passed.--- The right in which pre- emption is claimed---whether it be co-ownership, or participation in appendages, or vicinage--- must exist not only at the time of sale, but at the date of the suit for pre-emption, and it must continue up to the time the decree is passed. But is not necessary that the right should be subsisting at the date of the execution of the decree, or at the date of decree of the appellate court. The reason is that the crucial date in these cases is the date of the decree of the Court of first instance".
' The above principle should not be taken for any confusion because it insists about continuity of right of pre-emptor and demands that preemptor should continue with his right of pre-emption from date of sale till date of decree so as to succeed in a case, filed for title under right of Shufa.
Meaning thereby that if the right of pre-emption ceases or comes to an end before date of decree then suit for pre-emption cannot succeed hence the fate whereof would, legally, be nothing but a failure (dismissal).
12. Here, it is also worth to add here with reference to section 232 of Principles of Mohammadan Law (D.F.Mulla's) that it is not the 'Sale' alone but such sale should also be valid, complete and bona fide. Each word of the words i.e. Valid, complete and bona fide has to be given its due weight, meaning and understanding because by use of such words the rights, interests and claims of the pre-emptor have been given a protection against any maneuvered on part of the seller to defeat the right of pre-emptor by showing excessive amount etc. These equally protect the rights, interests and claims of the 'seller' because the use of words 'valid, complete and bona fide' appear to be nothing but to give a protection to the right of the seller to enter into conditional sale etc., which otherwise, are recognized by the law. Needless to add here that mere possession of one over a property cannot be termed to be a "sale" therefore, it can also be concluded safely that mere delivery of possession alone is not a sale, giving rise to right of pre-emption but the term 'sale' has to be taken as defined under section 54 of Transfer of Property Act, 1882.
13. Reverting to the proposition "whether after filing of the preemption suit, any subsequent cancellation of sale-deed or re-transfer of title by the vendee will effect the right/cause of pre- emptor plaintiff", it is matter of record that there is no enactment in Sindh in respect of matter(s) of pre-emption, thus suit(s) for Shufa (pre-emption) are governed by the settled principles of Mohammedan Law. Curiosity made me to examine all land laws, dealing with right of pre-emption in other provinces, thus found S.22 of Punjab Pre-emption Act, germane to the issue which, being material, is reproduced hereunder :--- ' Section-22-- "Improvement made in the status of the vendee-defendant after institution of the suit.--- Any improvement made in the status of vendee-defendant after the institution of suit for pre-emption, shall not affect the right of pre-emptor plaintiff."
' Bare perusal of section 22 of the Punjab Pre-emption Act, it is patent that such section provides a shield to any maneuver on part of the defendant(s) to defeat rights of pre-emption, which accrued to the plaintiff through a sale. It is evident that section 232 of Principles of Mohammadan Law (D.F.Mulla's) defines a "sale" for exercising of right of pre-emption that must consist upon three ingredients i.e. valid, complete and bona fide. Once there is a valid, complete and bona fide sale which has given rise to a right to a pre-emptor then things cannot be I left at the wishes of the defendant to frustrate such legally accrued cause by any subsequent move, including any course to get the title (sale-deed).
14. I am conscious of the legal position that application of the Punjab Pre-emption Act is confined to Punjab alone, but as I have already discussed that in absence of any enactment on the subject for Sindh Province the things are governed by settled principles of Mohammaden Law. It is worth to add here that applicability of many provisions of Punjab Pre-emption Act including aforesaid provisions, was examined by Federal Shariat Court, and honourable Supreme Court, in context that whether same are in conformity with injunction of Islam or repugnant to the injunction of Islam. The Federal Shariat Court declared number of provisions of Punjab Pre-emption Act, to be repugnant to injunction/Islam while deciding the case of "Mohammad Ismail Qureshi v. Government of Punjab"
(which reported as PLD 1991 FSC 80). Similar question was adjudicated before the honourable Supreme Court of Pakistan, in case of Haji Rana Muhammad Shabir Ahmad Khan v. Government of Punjab Province reported in PLD 1994 SC 1; wherein, held number of provisions of Punjab Pre- emption Act, including the above section, as not repugnant to Injunctions of Islam. Thus, it would be conducive to refer the ratio of the dictum laid down by honourable Supreme Court, that is: "42. It appears that while framing section 22 of the Act, 1991 the legislature kept in view the provisions of the said section 21(a), and has intentionally omitted the phrase "otherwise than through inheritance". The learned Federal Shariat Court has found the omission of this phrase as against the Injunctions of Islam on the ground that the improvement taking place on account of a natural factor, such as inheritance, should have not been disregarded. But we feel that if the legislature had deemed it fit to omit this phrase and to protect the pre-emptor against all kinds of improvements, it does not violate any Injunction of Islam as laid down in the Holy Quran and Sunnah, rather it seems more pertinent to treat all kinds of subsequent improvements equally. The question is not whether the vendee has improved his status by his conscious act or otherwise. The question is one of principle. The right of pre-emption arises on the basis of those states of affairs which existed at the time of sale. If the vendee had no right of pre-emption at that time while the plaintiff had it, the right of the plaintiff is established, which cannot be defeated by any subsequent event which takes place after the institution of the suit. The same principle has been enumerated by the scholars of Islamic Jurisprudence also.
' It is mentioned in Al-Fatawa Al-Almgiriyyah, a well-known compilation of Fiqh: (Alamgiri page192 Vol.6)
"The principle is that pre-emption could only be claimed on the basis of ownership existing at the time of sale and not on the basis of a subsequent ownership."
43. A careful study of the relevant details in the books of Islamic Jurisprudence makes it clear that the Muslim jurists are of the opinion that any improvement in the status of the vendee after institution of the suit does not defeat the tight of pre-emptor, no matter whether the improvement was made by an intentional act of the vendee or has taken place according to some natural event, like succession."
15. Thus, it is the ratio of aforesaid dictum that subsequent change in the title by vendee during pendency of pre-emption suit is against the injunctions of Islam hence the plea found to be in confirmatory with injunctions of Islam, can well be taken as applicable for pending proceedings in Sindh Province, in matter (s) of Pre-emption. It is significant to add that principles settled/declared, through injunctions of Islam (principles of Mohammaden law) shall continue having its force all over the country in such like matter(s).
16. In view of what has been discussed I can safely answer the above proposition that any subsequent cancellation of a complete sale or re-transfer of suit-land in favour of vendee- defendant or any other perfidious attempts made by vendee or vendor as a result of collusive deal would not affect the right of pre-emption else it will take away the meaning and object of one of the principles of law which insists that what one cannot get directly, he cannot get the same indirectly.
17. Now I would like to examine the case in hand in view of above discussed touchstone. The perusal of the record shows that sale-deed in question, nowhere, specifies that it was conditional or incomplete but reading thereof shows that it was a complete sale without any conditional clause, therefore, subsequent claim of the defendants that it was, in fact, conditional one, cannot be allowed to sustain, therefore, I do not find the order of the learned trial court judge that on subsequent cancellation of the sale-deed the right/cause of pre-emption ceased. Besides, learned counsel for applicant failed to point out any illegality or irregularity in the impugned order passed in appellate jurisdiction, simultaneously instant revision also does not fall within the ambit of term "case decided," hence both parties are at liberty to adduce their evidence during trial to Substantiate their plea(s).
18. Accordingly, instant revision application is devoid of merits, consequently dismissed along with listed applications with no order as to cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.