' AMIN-UD-DIN KHAN, J.---Through this appeal appellant has challenged the judgment and decree dated 1-6-1981 passed by learned Additional District Judge, Gujrat whereby appeal filed by the appellant was dismissed and the judgment and decree dated 26-5-1979 whereby suit for pre- emption filed by the plaintiffs-respondents was decreed.
2. Brief facts of the case are that on 30-5-1974 plaintiffs-respondents filed a suit to pre-empt allegedly the sale of land through a decree on the basis of which Mutation. No, 613 was attested on 29-6-1973 on the ground that plaintiffs are owner in the estate and joint owners in the "Patti".
Written statement was filed on 26-2-1976 where preliminary objections were raised that court fee has not been affixed within the limitation; that the suit is time barred and that the suit is partial. The right of the plaintiffs was denied, it was stated that due to waiver the right of the plaintiffs, if any has been extinguished. Prayer for dismissal of the suit was made. Learned trial court on 22-4-1976 framed preliminary issue but on 19-11-1978 additional issues were alsoframed. Issues are as follows:-- "1-A. Whether the suit is one for partial pre-emption? If so, its effect?
1-B Whether the plaintiffs have waived their right of preemption?
1-C Whether the suit is time barred?
1-D Whether the plaintiffs have superior right of pre-emption?
1-E Whether the sale price of Rs:35,000 was bona fide fixed or actually paid?
1-F If issue No, 1-E is not proved, what was the market value of the suit land at the time of sale?
2. Relief "
' The proceedings show that on 8-2-1979 Ch. Muhammad Hanif, learned counsel for the plaintiffs Nos. 2 to 7 got recorded his statement that plaintiff No, 1 wants to withdraw from the suit and he has appointed another counsel, the learned counsel accepted the sale consideration of Rs:35,000 and while producing Exh.P.1 Mutation No, 613, Exh.P.2 copy of Jamabandi for the year 1970-1971 and Exh.P.3 copy of Jamabandi, closed the affirmative evidence and stated that plaintiffs' statement will be got recorded at the time of rebuttal. Record shows that on the same date statement of Muhammad Akbar, DW-1, statement of Subedar Fazal Ahmad DW-2 and statement of defendant was recorded and defence evidence was closed. After closure of the evidence of the defendant, plaintiff got recorded his statement on the same day i,e, 8-24979 and closed his evidence. The application filed by plaintiff No, 1 Murad Shah for withdrawal from the suit was also accepted on 8- 2-1979.
3. Learned counsel for the appellants argues that the suit was time barred and further that when plaintiff No, 1 withdrew from the suit, therefore, partial pre-emption remained in the field and suit was liable to be dismissed. Further states that the plaintiffs participated in the proceedings of attestation of mutation, therefore, they were not entitled to file the pre-emption suit and further that the suit has been filed with a considerable delay, same has wrongly been decreed. Further that the appeal has also been wrongly dismissed. While relying upon "Arad Ali Alvi v. Nazir" (PLD 1982 Lahore 358) states that the statement got recorded after rebuttal evidence of the defendant cannot be read in the affirmative evidence of the plaintiffs. Though learned counsel for the appellants has also argued the point that the suit was filed without payment of proper. Court fee, therefore, it was a contumacious act on the part of plaintiffs-respondents, therefore, suit should have been dismissed on that score.
4. On the other hand, learned counsel for the respondents-plaintiffs argues that superior right has been established and estoppel has not been proved against the plaintiffs- respondents. Further that the sale price has been admitted by the vendees-respondents. With regard to limitation while relying upon "Ali Nawaz v. Mst. Saira Bibi and 2 others" 1999 SCMR 1909 states that the sale is through a decree, therefore, period of limitation was provided as six years. While relying upon "Mehr Allah Ditta and another v. Muhammad All and another" (PLD 1972 SC 59) argues that when the stranger was joined with the plaintiffs and afterwards he withdrew from the suit, therefore, there is no defect with regard to the payment of court fee. Relies upon "Siddique Khan and 2 others v. Abdul Shakur Khan and another" (PLD 1984 SC 289) and states that now the law has been changed as the admission note of this appeal is of the year 1982 when the law was otherwise on the point of payment of court fee.
5. I have heard learned counsel for the parties and gone through the record, findings recorded by both the courts below as well as case law relied upon by the learned counsel for the parties.
6. Case of the plaintiffs-respondents that the sale is through a decree of the court, therefore, the period of limitation provided for filing of the suit is six years in the light of the judgment of the august Supreme Court of Pakistan referred supra. I have noticed that plaintiff has produced in his affirmative evidence copy of the mutation as Ex.P-1, which is on the basis of some decree of the civil court whereby rights of ownership have been transferred in favour of the defendant. This mutation does not show the nature of the decree, it only shows that through Rapt No, 465 recorded on 30-5-1973 the mutation has been entered on the basis of decree of civil court. The other two documents i,e, Exh.P.2 Jamabandi for the year 1970-71 show the ownership of Nawab Din and Chiragh Din sons of Manu. In Khana Kaifiyat of this Jamabandi mutation No, 597 has been mentioned in red ink to show that they have gifted the suit property to Mst. Said Begum whereas copy of Jamabandi has been produced as Exh.P.3 of the year 1974-1975 to show that plaintiffs Nos.
2 to 7 are owner in the estate. As it is the case of the plaintiffs themselves that the transaction of transfer in favour of the appellant is through a decree of the court, therefore, on the basis of the judgment of august Supreme Court of Pakistan reported as "Ali Nawaz v. Mst. Saira Bibi and 2 others" (1999 SCMR 1909) argument of learned counsel that the period of limitation for filing a suit of preemption is six years when the sale is through a decree of the civil court. The decree has not been provided on the record as the case of the pre-emptors/ respondents that the sale is through a decree, therefore, it was their duty to produce on the file the decree sheet of the learned trial court to establish the sale of the property through that decree. It is not on the record that whether this decree is a declaratory one or in a suit for specific performance. In case a decree is granted in a suit for declaration under section. 42 of the Specific Relief Act, 1877, it is now settled thit, that decree does not create or confer a new right but declares a preexisting right and same is implementable in the revenue record. Even copy of Rapt on the basis of which mutation in question has been sanctioned has also not been produced by the plaintiffs. Furthermore, A plaintiffs were required to prove their superior right at the time of sale, at the time of filing of suit and at the time of the decree. The plaintiff opted not to appear as his own witness, at the time of affirmative evidence his counsel made a statement accepting the consideration price as Rs,35,000 and produced the above mentioned three documents only. Admittedly, no consideration price has been paid at the time of attestation of mutation as the mutation was being attested on the basis of a decree and the date of decree is mentioned as 30-5-1973. The Jamabandi showing the ownership of transferor i,e, Mst. Said Begum Exh.P2 has been produced. Column No, 10 of the Jamabandi (Exh.P-2) shows endorsement of the mutation of gift in her favour whereas Exh. P3 is the Jamabandi for the year 1974-1975 to show the ownership of plaintiffs. Exh.P-3 does not show that at the time of alleged transfer the plaintiffs were also owner in the estate, as according to law plaintiffs were bound to show the superior right of pre-emption at the time of sale, at the time of filing of suit and at the time of decree. This Jamabandi does not show that plaintiffs were owner of the estate at the time of even attestation of the mutation i,e, Exh.P.1 and further when plaintiffs opted not to appear at the time of affirmative evidence; no superior right of the plaintiffs was established in this way. When one of the plaintiffs Mutalli appeared as a witness after the rebuttal evidence produced by the defendant, his statement recorded at the stage after recording of rebuttal evidence of defendant cannot be read in the affirmative evidence of the plaintiffs.
Furthermore he stated " " without claiming specific right and further, none of the other plaintiffs appeared as their own witness and Mutalli uttered not a single word about the right of preemption of other plaintiffs. In this view of the matter, findings recorded by both the courts below on Issue No, 1-D are absolutely against the law and principles laid down by the august Supreme Court of Pakistan. When it is the position, in the second appeal same can be and must be interfered with when findings recorded by the court are against the law, therefore, the findings recorded by both the courts below on Issue No,1-D are reversed on the basis of law cited by learned counsel for the parties. On the other issues learned counsel for the appellants could not show case of interference, therefore, findings recorded on other issues are confirmed.
7. In the light of what has been discussed above, on the basis of reversal of findings of both the courts below on issue No,1-D this appeal succeeds and judgments and decrees passed by both the courts below are set aside with a result that suit for pre-emption filed by the plaintiffs-respondents stands dismissed with no order as to costs.