' SARDAR ABDUL HAMEED KHAN, J. --- Through the above titled appeals, the appellants have challenged the validity and sanctity of e 'en dated judgments and decrees passed by the learned District Judge, Koti on 20.08.2008, whereby by accepting the appeals filed on behalf of respondent, herein, judgments and decrees passed by the Senior Civil Judge, Kotli dated 30.03.2007 have been set aside.
2. It may be mentioned here that the above-captioned 2 separate appeals, being same in nature, same parties and disputed property, were clubbed for onward proceedings and are decided through the instant single judgment.
3. Precise facts, necessary for disposal of the above captioned appeals are that Mehboob Hussain plaintiff/respondent, herein brought two separate suits for possession on the basis of right of prior purchase, in respect of suit land, against Munshi Khan and others, before the Court of Senior Civil Judge, Kotli on 29.11.1997, wherein, in both the suits it was stated that land comprising khewat No. 17, khata No. 125, survey No. 1433, measuring 28 kanals, 7 marlas, khewat No. 205, khata No. 981, survey Nos. 1362/1, 1348, 1354/1, 1881/2, 1881/3 measuring 17 kanals 10 marlas, total measuring 45 kanals, 15 marlas, situated in village Roli Tehsil & District Kotli has been alienated by the defendant No. 5 in favour of defendants No. 1 to 4 through two impugned sale-deeds registered on 02.08.1997 It was claimed that the suit land has been purchased b_ t vendee in lieu of Rs. 3,00,000/- (Three Lac) each as considertion amount, which was paid in the open Court. It was alleged that in order to defeat the right of prior purchase of the plaintiff, consideration amount has been entered as Rs.
10,00,000/- (Ten Lac) in each case and in this regard, a forged and concocted agreement has also been executed. It was further claimed that the plaintiff/pre-emptor is 'sharik khewat', shark khata, sharik Bana/Aar and Sahrik Deh/Mahall, in the suit land, therefore, has a preferential right of purchase of the suit land viz-a-viz the defendants. It was averred in both the suits that the transaction has been completed through two sale-deeds, which have been kept secret, therefore, separate suits for possession on the basis of right of prior purchase have been filed. It was prayed that a decree for possession of the suit land, in lieu of the amount, actually paid in the Court or such amount, as the Court may fix be issued in favour of the plaintiff.
4. Both the suits were contested by the defendants/appellants, herein by filing written statements.
Wherein, they refuted the claims of the plaintiff and stated that the consideration amount was fixed, and paid rightly. It was stated that the defendants/vendees are "sharik khewat', Sharik khata and Sharik Aar/Banna, prior to the plaintiff/pre emptor, therefore, the pre-emptor has no preferential righ over the defendants. Other grounds of the suits were also denied by the defendants and a request for dismissal of th suits was made.
5. In light of the pleadings of the parties the learned Trial Court framed issues and the parties were directed to lead evidence, pro and contra.
6. On completion of the proceedings, the learned Trial Court vide even dated judgments and decrees date 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 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 lis was 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 in hand. The learned counsel finally, craved for acceptance of 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 discussed.
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 lis 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 Kamal 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 wh h, 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 pith 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. Civil .