' ARSHAD MAHMOOD TABASSUM, J. --- Through this single judgment, I intend to dispose of two petitions i.e. CR No. 48 of 2009 and CR No. 49 of 2009, as both arose out of one and the same judgment and involve common questions of law and facts.
2. Briefly, the facts relevant and necessary for the disposal of the above petitions, are that Ghulam Sarwar respondent herein, on 08.01.1990, instituted a suit for declaration to the effect that he exchanged his land bearing Khata No. 56, measuring 9 kanals 12 marlas, with the land of Muhammad Jamil (defendant No. 2), falling in Khata No. 93, measuring 13 kanals 3 marlas, situated in Mauza Murad Wah and in this regard, an exchange deed No. 1011, dated 25.05.1978, was executed; that later on, the land belonging to Muhammad Jamil was converted into Khata No. 156, which was the land in dispute in the suit; that regarding the said transaction of exchange, one Manzoor Hussain filed a suit for pre-emption against the respondent Ghulam Sarwar, which was ultimately dismissed and appeal preferred by him also met with the same fate on 22.05.1989; that due to the pendency of the said pre-emption suit and appeal, the respondent could not get incorporated the land in dispute in the revenue record and that in the meanwhile, Ghulam Mustafa petitioner herein and defendant in the suit, collusively got instituted a suit against himself through the said Muhammad Jamil, titled "Muhammad Jamil v. Ghulam Mustafa" wherein the petitioner Ghulam Mustafa submitted his consenting written statement and got the said suit decreed in respect of the land in dispute in favour of Muhammad Jamil on 29.09.1981, on the basis of which, mutation No. 1207, dated 06.05.1984, was sanctioned in favour of the present petitioner. The respondent, therefore, prayed for setting aside the decree dated 29.09.1981 and mutation No. 1207, dated 06.05.1983, claiming the same a result of fraud and being against the law and facts. He also claimed decree for permanent injunction, restraining the petitioner from claiming the land in dispute as his land and correction of revenue record.
3. Ghulam Mustafa petitioner contested the suit and also instituted another suit for possession of the land in dispute and mesne profit at the rate of Rs. 5,000/- per annum; that he had obtained possession of the said land through the process of law, but was illegally dispossessed by the respondent and also maintained that he was owner of the land in dispute on the basis of consenting decree dated 29.09.1981. The divergent pleadings led the learned Trial Court to frame the following issues:--- ISSUES
(1) Whether the plaintiff has not come in the Court with clean hands? OPD
(2) Whether the suit is not maintainable? OPD
(3) Whether the suit is time-barred? OPD
(4) Whether the suit is undervalued for the purpose of Court-fee and jurisdiction? OPD
(5) Whether the plaintiff is owner in possession of the suit land? OPP
(6) Whether or not the mutation No. 1207, dated 06.05.1984, is against facts and law? OP Parties.
(7) Whether the plaintiff is entitled for? OPP
(8) Whether the defendants Ghulam Mustafa etc. Are entitled to get the possession of the disputed property? OPD
(9) Whether the defendants Ghulam Mustafa etc. Are entitled to get mesne profits, if so, how much? OPD
(10) Relief.
4. Both the parties produced their pro and contra evidence in support of their respective claims and ultimately the learned Trial Court decreed the suit, filed by Ghulam Mustafa petitioner and dismissed the one, filed by Ghulam Sarwar respondent. Two separate appeals were preferred by the respondent Ghulam Sarwar, which were allowed by the learned Additional District Judge, vide judgment dated 19.03.2004. Resultantly, suit for declaration, filed by the respondent was decreed, while the suit for possession, filed by the petitioner Ghulam Mustafa was dismissed. The petitioner preferred civil revision in this Court, which was allowed on 11.12.2006, and the case was remanded to the learned Additional District Judge for decision afresh. The learned Additional District Judge again, vide judgment and decree dated 20.12.2008, allowed both the appeals, decreed the suit of the respondent, while dismissed that of the petitioner. It is in this background that the instant petitions under Section 115, CPC, have been preferred by the petitioner.
5. Learned counsel for the petitioner has argued that the decree dated 29.09.1981, passed by the learned Civil Judge could only be assailed through application under Section 12(2), CPC, and not through a separate suit; that even if the suit was to be treated as an application under Section 12(2), CPC, then entertainment of the said application was subject to limitation, provided for the said application, which was three years and the suit was filed beyond the period of limitation and was liable to be dismissed on this score alone; that the decree dated 29.09.1981, was not at all collusive, nor result of fraud and misrepresentation, hence, could not be set aside and that the learned first Appellate Court has misread and misconstrued the evidence available on record and thereby set aside the decree, passed by the learned Trial Court in favour of the petitioner on erroneous assumption of law and facts, hence, both the decrees are liable to be set aside by accepting the instant petitions.
6. On completion of the proceedings, the learned Trial Court vide even dated judgments and decrees dated 30.03.2007 dismissed both the suits for want of proof.
7. Feeling aggrieved from the said judgment and decrees, plaintiff/respondent, herein knocked the door of the learned District Judge, Kotli on 11.05.2007. The learned 1st Appellate Court, after hearing the parties vide even dated judgment & decrees dated 20.08.2008, accepted the appeals, vacated the judgment and decree of the learned Trial Court, and decreed both the suits, with the observation that the decretal amount Rs. 10,00,000/- (Ten Lac) in each case be deposited in the Court within 30 days of the judgment failing which both the suits shall be deemed to have been dismissed. The above judgments and decrees of the learned District Judge, Kotli have been assailed before this Court, through above-captioned separate appeals.
8. Mirza Nisar Ahmed, Advocate, the learned counsel for the appellants, inter alia argued that the learned Trial Court has rightly dismissed the suit for want of proof as the plaintiff miserably failed to prove his claim before the Trial Court. The learned counsel argued that the appellants, are enjoying the status of shaafi-sharik in the suit land, whereas, the defendant/pre-emptor stands, just in the category of shaafi-jaar, hence, the pre-emptor was not in possession of any right of prior purchase and the suits were rightly dismissed by the learned Trial Court. This judgment was maintained upto the High Court of AJK, and during pendency of the said suit, the impugned sale-deeds were plaintiff/respondent. Executed, which have been pre-empted by the present plaintiff/respondent.
The learned counsel added that the suit filed by Muhammad Sadiq, who is not party in the present /is as decreed by the Supreme Court of AJK, hence, it is obvious that the pre-emptor/respondents was not in possession of prior right at the time of execution of sale-deed and at the time of institution of present suits, because at these two stages the appellant was in possession of prior right against the respondent, thus the suits of the respondents were liable to dismissal whereas the learned District Judge failed to appreciate this important aspect and fell in error. The learned Court below has travelled beyond the pleadings and facts of the cases, while passing the decree for pre- emption in favour of the present respondent. It is argued by him that the findings of the learned Trial Court were unexceptional and did not merit any interference but the learned 1st Appellate Court has, erroneously recalled the judgment and decrees of the Trial Court. The learned counsel further contended that the issue of price of the suit property as Rs. 10,00,000/- in each sale-deed total 20 Lac in both transactions has attained finality as the preemptor/respondent M. Mahboob did not file any appeal. The learned counsel argued at length and touched every nook and corner of the record, facts of the case/and entries of Revenue Record and tried his best to persuade the Court that the pre-emptor was not possessing the right of prior purchase at two stages out of 3 essential stages i.e. At the time of sale and at the time of institution of the suit. He further argued with full vehemence that in this eventuality the possession of the right of prior purchase by the pre- emptor at the time of decree/judgment is of no use and suit fails, but the 1st Appellate Court misconstrued the law on the point that the decree/judgment of Court of law will take effect prospectively and not retrospectively, as in this case decree has been passed by the apex Court in favour of one Mohammad Sadiq on 20.06.2005, who is stranger to /is it hand. The learned counsel finally, craved for acceptance the appeal. While relying upon the following case-law:---
(1) PLD 1971 AJK 101,
(2) 2004 CLC 882,
(3) PLJ 2012 AJK 167.
9. Ch. Muhammad Naseem, Advocate, the learned counsel for the respondent, while controverting the arguments advanced on behalf of the appellants, contended that the plaintiff had fully proved his claim before the Trial Court but the learned Trial Court fell in error while dismissing the suit for want of proof. The learned counsel, supported the impugned judgment and decrees of the 1st Appellate Court, on all four corners and craved for dismissal of the appeals, placing reliance on the following case-law:---
(1) 2007 SCR 491,
(2) PLJ 2012 AJK 70,
(3) PLJ 1997 SC AJK 78,
(4) 1998 SCR 372.
10. I have heard the learned counsel for the parties, perused the record, appended therewith and considered the precedent case-law, referred by the parties with utmost care.
11. It may be stated that the sole controversy in the instant appeals is, whether at the time of filing of preemption suit, the plaintiff/pre-emptor-respondent, herein was a competent plaintiff or not As far as the issues regarding the consideration money and market value are concerned have attained finality as the pre-emptor/respondent has not ;filed appeal, hence, need not to be discussea.
12. The law is well-settled, now that a pre-emptor must have in possession of preferential right of purchase on three stages, which are as under:---
(1) At the time of execution of sale-deed,
(2) At the time of filing of the suit for pre-emption,
(3) At the time of decree from the Trial Court.
13. Decree on the basis of right of prior purchase in favour of Muhammad Sadiq, an alien to the present controversy, who was pre-emptor against the present appellants/vendees was passed by the apex Court of AJK on 20.06.2005, whereby, the judgment and decrees passed by the subordinate Courts as well as this Court were declared as non-existent, hence, the judgment of the apex Court will take effect from the date of the judgment and decree of the Trial Court, which is 25.09.1996 and the decree of the Trial Court and other Courts stood merged in the final and the last decree of the apex Court. Whereas, the /is before this Court was brought on 29.11.1997. In this regard safer reliance can be placed on PLD 2002 SC 391, in case titled Muhammad Yousaf v. Noor Din, wherein, the doctrine of merger has been explained and it has been held as under:- "4. The law on the subject now stands clarified and settled in view of the dictum laid down in Khawaja Muhammad Yousaf v. Federal Government through Secretary Ministry of Kashmir Affairs and Northern Areas and others, 1999 SCMR 1516 that if the Supreme Court merely reaffirms a judgment or order of a High Court by refusing leave to appeal the final judgment in terms of Section 12(2), CPC will be of the High Court and not of the Supreme Court and if the Supreme Court reverses a judgment of a High Court and records a finding on question of fact or law contrary what was held by High Court, the final judgment or order would be of the Supreme Court for the purposes of Section 12(2), CPC. The same view was reiterated in Abid Kemal v. Mudassar Mustafa and others 2000 SCMR 900."
14. The law of merger has also been resolved in a case titled Habib Bank Ltd. v. Major Nasim Ahmed [PLD 1994 Lahore 119]. In para 4 of the report, it has been held as under:- "4. Appreciating all the reported cases on the subject, the principle of merger can be well-settled as under:--- ' The decree of the Subordinate Court merges into that of Appellate Court and that of the Appellate Court into that of the Court of Revisional jurisdiction. The application under Section 12(2), CPC, therefore, lies to the Court which passes the final judgment, decree or order, however, with the distinction that the matter should have been heard and finally decided on merits after notice to the other party."
15. In light of the above decision of the apex Court of AJK, the plaintiff/pre-emptor (respondent herein) who was inferior in status viz-a-viz to the vendees, got a superior status whereas, the vendees/appellants stood excluded from the categories of pre-emptors for having lost the property, on the basis of which, they were shaafi-sharik in the suit property. Now the respondent/pre-emptor, who is shaafi-jaar is entitled to decree of prior purchase.
16. After having regard with the above-quoted legal principles, I have scanned the impugned, even dated judgments and decrees of the learned Court below, minutely.
17. The learned Court below, in its judgment, in both the cases, has discussed the controversy in detail and decided the controversy in light of the dictum of the apex Court of AJK. For convenience sake, concluding portion of the said judgment is reproduced, hereunder:---
(sic) by Assistant Registrar Supreme Court at Mirpur. The decree shall become final and executable after the amount is deposited, otherwise the appeal alongwith suit shall stands dismissed."
18. In light of the observations of the apex Court, Muhammad Sadiq, pre-emptor, therein, was declared as owner of the suit land subject to the payment of the costs. Meaning thereby, that the present vendees/appellants, who were also purchasers of the land in that case, stood excluded from the land in dispute, therein, with effect from the date of 1st decree. Hence, it can safely be concluded that the present appellants who claimed the prior right of 1st degree stood excluded, whereas, M. Mahboob Khan, plaintiff/respondent who was the pre-emptor of 3rd degree, became eligible to pre-empt in respect of the suit land.
19. It will not be out of place to mention here that the right of prior purchase/pre-emption is the right of substitution. It is obvious that now, in the light of judgment of apex Court one Muhammad Sadiq has been substituted as vendee/purchaser in the impugned sale-deed, therein. But the said Muhammad Sadiq is not party in the present /is. In this view of the matter, it is concluded that the respondent being the only pre-emptor in case in hand is the person having preferential right of purchase as shaaf i-jaar.
20. In light of the above findings of the apex Court of AJK & other merits of the case, while examined in the light of the principle of law of substitution and merger, this Court is persuaded to hold that present appellants had lost their right of pre-emption on the date of sale and at least, on the date when the Trial Court passed the decree on 25.09.1996, before the execution of impugned sale- deeds dated 02.08.1997 and even before the institution of suits in these cases on 29.11.1997.
Moreover, the respondent was also holding the right of prior purchase at stage of decree of Trial Court, meaning thereby that at all the three stages. Hence, the plaintiff/respondent, herein was competent to file preemption suit against the appellants, and the learned Court below has rightly granted the decree of pre-emption in favour of the respondents. Thus, both the above appeals merit dismissal.
21. The case-law, referred by the parties, has also been considered, which, in my estimation, has no close relevancy with the /is in hand, hence, I am not inclined to discuss the same in detail.
22. The with of the above detailed discussion is that the instant appeals fails to make out any room for interference in the judgments and decrees passed by the learned District Judge, Kotli, hence, stands dismissed and the judgments/decrees under challenge are hereby upheld.
23. Order announced. No order as to cost. The file shall be consigned to record after completion, by sending back the record of the Courts below.