' SHAHID BILAL HASSAN, Initially, Mst. Fatima Bibi preferred R.S.A. Against judgment and decree dated 6-12-1995, which was admitted to regular hearing; but during the pendency of the second appeal, the appellants moved a C.M. No,548-C of 1997 for converting the appeal into civil revision on the ground that value for the purpose of jurisdiction was Rs,6480 and value for the purpose of court fee was Rs,80,400 and suit was originally filed on 24-2-1979, so civil revision was competent, but inadvertently, Regular Second Appeal has been filed, which application has been contested by the respondents on the ground that the scope of R.S.A. And Civil Revision are different. However, on the basis of mere approaching the higher forum through wrong form of remedy, one cannot be non- suited as valuable interest of the parties are involved and it would be against the principles of natural justice, too; therefore, in the interest of justice, the application bearing C.M. No,548-C of 1997 is accepted and the R.S.A. Is converted into civil revision.
2. Now in order avoid conflicting judgment, by way of this single judgment, this Court intends to decide, the instant R.S.A. (converted into Civil Revision) as well as Civil Revision bearing No, 1025-D of 1995 preferred by Ghulam Haider and others, having assailed one and same judgment dated 6- 12-1995 passed by learned Addl. District Judge, Vehari, whereby appeal preferred against judgment and decree dated 2-12-1985, was dismissed.
3. Tersely, the facts necessitating to approach this Court by assailing the impugned judgment and decree dated 6-12-1995 may be summarized as such that 175 Kanals of land situated in Chak No,473/EB Tehsil Burewala was sold by one Ghulam Rasool (predecessor in interest of Mst. Fatima Bibi and others) to Nazir Ahmad and Muhammad Shafi (respondents Nos.13 and 14) for consideration of Rs,328,000 through registered sale deed dated 26-2-1978. On 24-2-1979, Ch. Muhammad Amin, predecessor in interest of the respondents Nos.1 to 12 instituted a suit for possession through pre-emption claiming himself to be co-owner in the land in question and had superior right as against stranger vendees. He asserted that land in question was originally sold for Rs,125,000, but in order to deter right of pre-emption ostensible sale price of Rs,328,000 was mentioned. The suit was contested by the vendees/respondents Nos.13 and 14 by raising factual as well as legal objections in their written statement submitted on 4-9-1979 and also denied the superior right of pre-emption of the preemptor. The learned trial Court, summed up the divergence in the pleadings into following issues:-
(1) Whether the plaintiff has no cause of action to bring this suit? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the plaintiff is estopped to bring this suit on account of his conduct? OPD
(4) Whether the suit is collusive? OPD
(5) Whether the plaint is deficient in court fee, if so, its effect? OPD
(6) Whether the suit is barred by time? OPD
(7) Whether the suit property has not been correctly described? OPD
(8) Whether the defendants have improved the suit land, if so, to what value? OPD
(9) Whether the defendants are entitled to special costs? OPD
(10) Whether the plaintiff possesses superior right of pre-emption qua the vendees-defendants?
OPP
(11) Whether the sale price of Rs, 328,000 was fixed in good faith or actually paid? OPD
(12) If issue No,11 is not decided in affirmatively then what was the market value of the suit land? OP Parties
(13) Relief ' Meanwhile, Ghulam Rasool, vendor (predecessor in interest of Mst. Fatima Bibi and others) instituted a declaratory suit against the vendees Nazir Ahmad, etc. (respondents Nos. 13 and 14) seeking cancellation of the sale deed dated 26-2-1978 ibid on the ground of fraud and misrepresentation on 14-4-1979, during pendency of the suit for pre-emption. He (Ghulam Rasool) also moved an application for impleading him as party in the suit for pre-emption, which was subsequently allowed vide order dated 22-9-1982 and he was impleaded as defendant No,3, who filed his written statement. Similarly, Muhammad Amin pre-emptor (predecessor in interest of Mst.
Fatima Bibi and others) was also impleaded as party in suit for declaration instituted by Ghulam Rasool. The said suit for declaration was contested by the vendees (Nazir Ahmad and Muhammad Shafi) as well as pre-emptor (Ch. Muhammad Amin). The learned trial Court consolidated both the suits vide order dated 4-1-1981 and framed the following consolidated issues:--
(1) Whether the plaintiff in suit No,66 has no cause of action to bring this suit? OPD
(2) Whether the plaintiff in suit No,66 has no locus standi to bring this suit? OPD
(3) Whether the Suit No,66 is not maintainable in its present form? OPD
(4) Whether the plaintiff in suit No,66 is estopped to bring this suit on account of his conduct? OPD
(5) Whether the suit No,66 is collusive? OPD
(6) Whether the plaint in suit No,66 as well as in suit No,325 is deficient in court fee? If so is effect?
OPD
(7) Whether the suit No,66 is barred by time? OPD
(8) Whether the suit property in suit No,66 has not been correctly described? OPD
(9) Whether the plaintiff in suit No,325 has no cause of action to bring his suit? OPD
(10) Whether the suit No,325 is not maintainable in its present form? OPD
(11) Whether the plaintiff in suit No,325 is estopped by his words and conduct to bring this suit? OPD
(12) Whether the suit No,325 is false and frivolous and the defendants are entitled to special costs?
If so to what extent? OPD
(13) Whether the defendants Nos.1 and 2 in both the suits have improved the suit land. If so, to what value? OPD
(14) Whether the defendants in suit No,66 are entitled to special costs under section 35-A of the C.P.C.? OPD
(15) Whether the sale of the suit land by way of registered sale deed No,73 dated 26-2-1978 is unlawful, fraudulent, mala fide, without consideration and result of undue influence and therefore, void and liable to cancellation and ineffective upon the rights of plaintiff Ghulam Rasool in suit No,325 the defendant in suit No,66? OPD (Ghulam Rasool plaintiff in suit No,325)
(16) If issue No,15 is not proved, then whether the plaintiff Ch. Muhammad Amin in suit No,66 possesses a superior right of preemption as against the vendee defendants Nos. ] and 2 in respect of the suit land? OP Plaintiff in suit No,66
(17) Whether the sale price of Rs, 328,000 was fixed in good faith or actually paid? OPD 1 and 2
(18) If issue No,17 is not proved in affirmative then what was the market value of the suit land at the time of its sale? OPP
(19) Relief.
' After recording evidence of both the parties, in pro and contra, the learned trial Court vide judgment dated 29-10-1981 decreed the suit for possession through preemption in favour of the pre-emptor, predecessor in interest of the respondents Nos.1 to 12 and dismissed the declaratory suit of Ghulam Rasool (predecessor in interest of the present petitioners); latter preferred two separate appeals against the said judgment and decree, which were subsequently allowed by learned Appellate Court vide judgment dated 18-9-1984 and suits were remanded with direction to decide both the suits separately. After remand, the learned trial Court vide order dated 6-2-1985 deleted the name of vendor Ghulam Rasool (predecessor in interest of the present petitioners) as well as name of pre-emptor's successors i,e, respondents Nos.1 to 12 from their respective suits. The pre-emptor(s) called into question the remand order dated 18-9-1984 through F.A.Os. Nos.50 and 50-A of 1985 before this Court, but same were dismissed vide order dated 29-1-1985. Meanwhile, after remand, both the parties relied on the already recorded evidence by making statements through their counsel dated 24-11-1985. The learned trial Court after hearing the arguments decreed the suit for possession through pre-emption in favour of the respondents Nos.1 to 12 vide judgment and decree dated 1-12-1985 against the respondents Nos.13 and 14, who did not prefer any appeal. However, Ghulam Rasool, vendor (predecessor in interest of present petitioners) preferred an appeal against the said judgment and decree on the ground that since his suit for declaration was decreed and sale deed dated 26-2-1978 had been set aside and declared null and void, so the decree could not be passed in favour of the pre-emptor(s)/respondents Nos.1 to 12 and because the said decree adversely affected his rights, he had a right to file appeal being an aggrieved person, but learned. District Judge, seized of the matter, vide judgment dated 25-6-1986 dismissed the appeal on the ground that he (Ghulam Rasool) was not party to the suit so he could not challenge the decree. He (Ghulam Rasool) challenged the said judgment through revision before Multan Bench of this Court, which was accepted vide judgment dated 2-2-1993 and case was remanded with the following observations:-- "The result is that the revision petition is accepted and the case is remitted to the learned District Judge, who shall act in accordance with law and keep in view the observation made in this judgment, in the matter of disposal of the appeal filed by the petitioner which shall be deemed to be pending before him. The parties shall appear before the said learned Court on 20-2-1993."
' After remand, the learned Appellate Court vide judgment and decree dated 6-12-1995, impugned herein, dismissed the appeal preferred by the present petitioners with the following observations:- "In the result it is found that the declaratory decree in favour of the deceased vendor/appellant is of no legal consequence and the preemption decree under challenge in this appeal is not adversely affected by it"
4. Being aggrieved of the impugned judgment and decree, the present petitioners through the separate civil revisions have assailed the same before this Court.
5. Learned counsel for the petitioners has inter alia contended that the declaratory decree passed in favour of deceased vendor Ghulam Rasool had since declared the sale under pre-emption null and void; therefore, there was no question of enforcement of right of pre-emption. Adds that said declaratory decree was passed on the same day when the pre-emption decree was passed i,e, on 2-12-1985. Further submits that since pre-emption is a right of substitution, with the disappearance of sale itself the question to pre-empt does not arise; that the declaratory decree was not challenged by the respondents Nos.1 to 12 and as such it became final; that the declaratory decree was passed on special oath and as such it could not be termed to be collusive between the vendor and vendees; that the learned Appellate Court has failed to keep in view the observations recorded by this Court while remitting the case; that both the learned courts have failed to appreciate the basic law on the subject; that the impugned judgments and decrees are result of misreading and non-reading of evidence; the same are based on surmises and conjectures; that the learned trial Court as well as learned appellate Court had illegally decreed the suit for preemption in presence of declaratory decree; that material illegalities and irregularities have been committed by learned Courts below; that grave miscarriage of justice has been done by learned Courts below while passing the impugned judgments and decrees; hence, the same are not sustainable in the eyes of law and liable to be set aside; resultantly, the suit filed for possession through pre-emption may be dismissed. Relies on Muhammad lqbal and others v. Khushi Muhammad through Legal Heirs and others 1995 MLD 1886-Lahore, Mst. Amanat Bibi v. Khuda Dad and others 1994 CLC 979-Lahore, Saidati Gul v. Mst. Shughla and 8 others NLR 1980 Revenue BOR 177, Maqbool Ahmed and others v.
Ghulam Hussain and others 2007 SCMR 1223, Malik Hussain and others v. Lal Ram Chan and others PLD 1970 Supreme Court 299 and Ghulam Mehmood v. Hukam Khan and others 200l MLD 366- Peshawai.
6. On the contrary, learned counsel appearing on behalf of the respondents Nos.1 to 12 by controverting the submissions made by learned counsel for the petitioner(s) has further submitted that Ghulam Rasool, predecessor in interest of the petitioners challenged the sale of the suit land effected through a registered sale deed dated 26-2-1978, which was subject matter of a pending suit for possession through pre-emption; hence, same did not affect the right of pre-emption that had already accrued to the deceased pre-emptor as a result of the registered sale deed; that the right of pre-emption was exercised on 24-2-1989, while the suit for declaration was filed thereafter on 14-4-1989, which would not affect the superior right of preemption. Further adds that may be the declaratory suit seeking cancellation of the registered sale deed was decreed in favour of the deceased vendor i,e, predecessor in interest of the petitioners on the same day when the decree in suit for possession through pre-emption was passed, but it was of no legal consequence as the said decree was obtained with collusion of the vendees/ respondents Nos.13 and 14 in a shameful proceeding of special oath, hence, this decree cannot affect the successful preemptors because they were not party to it. Submits that such return of the suit land back to the vendor with collusion of the vendees through a declaratory decree could be nothing but a resale and resale of a subject matter of pre-emption suit does not affect right of the pre-emptors, because principle of lis pendens is there to protect the right of the pre-emptors; hence, the learned Appellate Court has rightly drawn the conclusion and rightly non-suited the petitioners. Relies on Mian Abdul Qayyum v.
Dr. Muhammad 4kram Khan 1982 SCMR 1024, Ahmaa Sher and others v. Muhammad Hayat PLD 2006 Supreme Court 448, Falak Sher v. Muhammad Rashid and another PLD 1982 Lah. 426, Munir Hussain v. Muhammad Shafi and another i981 CLC 1712-Lahore, Mian Abdul Qayyum v. Dr. Muhammad Akram Khan 1982 CLC 950-Lahore, Muhammad Khan and another v. Zir Mir Khar, and 2 others 1981 CLC 129-Lahore, Syed Zafar Ali Shah v. Fazal Shah and 2 others 1983 CLC 1816-Peshawar, Mst. Bibi Mehr Jana v. Sultan Muhammad 1985 CLC 1635, Riaz Ahmed v. Asghar Ali and others 2010 YLR 278, Gram Panchayat of Village Naulakha v. Ujagar Singh and others AIR 2000 Supreme Court 3272, Muhammad Boota, and others v. Addl. District Judge, Gujranwala, and others NLR 2006 Civil 4 and Khushro S. Gandhi and others v. N.A. Guzder (dead) by his legal representatives and others AIR 1970 Supreme Court 1468.
7. Heard.
8. Admittedly, the suit for possession on the basis of pre-emption was instituted (24-2-1979) prior to the suit for declaration (14-4-1979) seeking cancellation of sale deed dated 26-2-1978 (subject matter in the suit for possession through pre-emption) being based on fraud and misrepresentation, filed by the original vendor i,e, Ghulam Rasool (predecessor in interest of the petitioners), meaning thereby the right of pre-emption had already been exercised by the pre- emptor/Ch. Muhammad Amin (predecessor in interest of the respondents Nos.1 to 12). The sale was affected through a registered sale deed dated 26-2-1978 and same was not denied by the vendees/ respondents Nos.13 and 14, rather admitted that they had purchased the suit land from Ghulam Rasool vendor while submitting their written statement, filed on 4-9-1979, even while submitting' their amended written statement, they have affirmed the registered sale deed validly executed in their favour; then how in a suit for declaration filed by vendor Ghulam Rasool, they made offer for taking special oath, from this act fraud and collusion can be smelled, even otherwise, it has rightly been observed by learned Appellate Court that when Muhammad Shafi appeared in the witness box as P.W.2 and specifically stated that he and Nazir Ahmad purchased the suit land through registered sale deed dated 26-2-1978 from Ghulam Rasool, but despite affording an opportunity to cross-examine said witness, said Ghulam Rasool, as he was party to the said as defendant No,3, did not opt to cross-examine him, which further strengthen the fact that the suit for declaration was instituted collusively against the vendees, in order to thwart the right of pre-emption; therefore, such decree obtained through fraud and collusion has no legal effect upon the decree passed in suit for pre-emption and would not adversely affect the pre- emptors rights accrued in the suit land, that too on special oath especially when vendor and the vendees are closely related inter se as is evident from the impugned judgment that and evidence made available on record that A wife of Ghulam Rasool vendor is mother in law of Muhammad Shafi P.W.2/vendee; even otherwise, at the cost of repetition, it is observed that suit for pre-emption was prior than the suit for declaration and same was instituted during pendency of suit for possession ,through pre-emption, so the principle of lis pendens is also there to protect the rights of the pre-emptor, especially when collusiveness inter the vendor and vendees has been spelt out in obtaining the declaratory decree on the basis of special oath, which seems an attempt to defeat the decree passed in preemption suit. In this regard safer reliance can be placed on Mian Abdul Qayyum's ease 1982 SCMR 1024, wherein it has been held that:-- "Pre-emption decree---Not affected by anything happening subsequently---Sale pre-emptible and cause of action accruing to respondent to file pre-emption suit under S.21 of Punjab Pre- emption Act, 1913, when sale completed---Decree for declaration, held, cannot bind pre-emptor, subsequent suit being a devise to defeat preemption decree."
Moreover, the pre-emptor was not party to the suit filed for declaration by the vendor, so same is not binding upon him in any manner. Reliance in this regard is placed on Ahmad Sher and others's case PLD 2006 Supreme Court 448, wherein it has been invariably held that:-- "Present pre-emptor was not a party to such suit and the decree was obtained on conceding written statement of defendant---Being a consent decree, it was no more than a mere agreement between the parties regardless of the judicial imprimatur that it contained---Such agreement without the present preemptor being a party to it, was not binding upon him---High Court was justified in holding that such consent decree was collusive between the parties thereto to damage the already pending suit for pre-emption."
Furthermore, it is admitted fact that the suit for declaration was instituted during pendency of the suit for possession through pre-emption, therefore, if any decree is passed in suit for declaration, which too on the basis of collusiveness inter se the parties to that suit, same would not adversely affect the suit for pre-emption, because same is an attempt to deprive the preemptor and nothing more than this; in this regard safer reliance can be placed on Falak Sher's case PLD 1982 Lah. 426, wherein it has been observed that:-- "Pre-emption---Declaratory decree against vendee by vendor---Effect of---Collusion between vendor and vendee resulting in declaratory decree aimed at giving back disputed land to vendor with object of defeating pre-emption suit---Held: such decree being on no better footing than re- sale of land by vendee in favour of vendor not to adversely affect suit for preemption."
In view of above discussion, if the declaratory decree is allowed to sustain, it would adversely affect the right of preemptor accrued after passing of decree in his suit for possession on the basis of preemption, which was instituted prior to filing of suit for declaration; therefore, such declaratory decree cannot be allowed to D sustain, because the principle of lis pendens protects the rights of successful litigant and while formulating this principle the legislatures were mindful of facing such like situations: In this regard reliance is placed on Munir Hussain's case 1981 CLC 1712 Lahore, wherein it has been observed that:-- "According to section 52 of the said Act, respondent No,2 is to be protected against the adverse effect of the developments resulting in the passing of the declaratory decree. If declaratory decree is allowed to stand, it will not be possible to protect the pre-emptive rights of the first respondent inasmuch as in the event of the declaratory decree taking effect the very sale preempted by him would disappear and thus he would be left with no right to be enforced by means of the pre-emption suit."
' Even in Mian Abdul Qayyum' s case 1982 CLC 950-Lahore, it has been observed that, "Right of pre- emption once, exercised, held, not lost even if sale retracted---Decree for declaration not binding on preemptor even if passed against him---Cause of action once accrued would continue." When it is proved on record that vendor and vendees collusively obtained declaratory decree in order to defeat the right of pre-emptor and to protect the property in dispute, the pre-emptor's rights cannot be defeated, because said decree would be termed as resale in favour of vendor and not otherwise; in this regard reliance can be placed on Muhammad Khan's case 1981 CLC 129-Lahore, wherein it has been held that:-- "Pre-emption, right of---Cannot be defeated by means of resale of land in question in favour of vendor himself."
' Even in Mst. Bibi Mehr Jana's case 1985 CLC 1635, it has been observed that, "Right of pre-emption is not lost on retraction of sale."
9. When a specific plea has been taken by the respondents Nos.1 to 12/preemptor(s) that declaratory decree was obtained due to collusion and fraud, same was to be proved under Article 58 of the Qanun-e-Shahadat Order, 1984, which is produced for ease of reference as under:-- "58. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved. Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Article 54, 55 or 56, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion."
'Keeping in view the evidence discussed by learned Appellate Court and conduct of the vendor and vendees, it has surfaced on record that declaratory decree in the present case was obtained collusively in order to defeat the pre=emptors' rights; therefore, the respondents Nos.1 to 12/pre- emptors have discharged the onus shifted on them in terms of Article 58 of the Order ibid. When the pre-emptors were not made party to the suit for declaration despite the pending of suit for pre-emption, the decree passed in said suit would have no legal effect upon the pre-emptors as held in Muhammad Boota's case NLR 2006 Civil 4, "Consent declaratory decree in favour of plaintiff in declaratory suit filed without in:pleading pre-emptors plaintiffs of pending pre- emption suit would have no legal value. In such case, principle of lis pendens, as enunciated by S.52 and affirmed consistently by superior Courts would be fully attracted and applied invalidating the consent declaratory decree in favour of plaintiff in her declaratory suit."
10. So far as the objection of learned counsel for the petitioner that learned appellate Court has not considered/kept in view the observation made by this Court while remanding the matter to it by accepting the revision filed by their predecessor in interest i,e, Ghulam Rasool (deceased) is concerned, it is observed that at the time of deciding the revision, the matter in issue was maintainability of the appeal before the learned Appellate Court filed by the predecessor in interest of the petitioners, before this Court and nothing more than that and the learned Appellate Court has rightly observed that it was not observed by this Court that declaratory decree was not collusive, but it was observed by this Court that petitioners' processor could challenge the decree passed in pre-emption suit if his rights are adversely affected.
11. As far as the case-law relied upon by learned counsel for the petitioners, with utmost respect, have no relevance to the facts and circumstances of the present case; therefore, it would not be helpful to the petitioners' cause.
12. The crux of the discussion above is that the petitioners have failed to point out any illegality, irregularity or wrong exercise of jurisdiction allegedly committed by learned Appellate Court, rather the impugned judgment and decree is well reasoned, based on solid reasoning, appreciation of law on the subject in true perspective. No misreading and non-reading of evidence has been made by learned appellate Court, rather the impugned judgment is upto the dexterity and same does not call for any interference by this Court in revisional jurisdiction.
13. Resultantly, the instant R.S.A. No,41 of 1995 (now converted into Civil Revision) as well as C.R. No, 1025 of 1995, being devoid of any force are hereby dismissed.