This first appeal is directed against the judgment and decree dated 15th September, 1975, whereby the learned Civil Judge, Wazirabad, refused to add in the suit one of the vendees as a party after the period of limitation and consequently dismissed the suit being one of partial pre-emption.
2. A sale dated 12th June, 1973, made in favour of four vendees, namely, Kaloo son of Umar Din, Kamal Din son of Umar Din, Fazal Din son of Umar Din and Fazal Muhammad son of Rahmat Ali was pre--empted by Khalid Ahmad and Masood Ahmad plaintiffs-appellants on the basis of their being owners of the estate and co-sharers in the khata in dispute. The pre-emptors had taken great care to give details of the land sold, but was said to have accidentally omitted in their suit to implead Kaloo as a defendant.
3. On 21st October, 1974, defendants-vendees submitted their written statement raising the plea that on account of omission to implead the fourth vendee, the suit had become one of partial pre- emption and was liable to be dismissed. The plaintiffs-appellants had also realized their mistake and had on the same day moved an application under Order 1, rule 10 read with section 151, 0. P. C.
For joining Kaloo vendee, as a defendant. 1t was stated therein that on going through the original sale-deed it had been found that Kaloo was also one of the vendees whose name was omitted as party. It was contended that the error was committed because his name could not be read clearly from the copy of the sale-deed supplied to them and that the error was due to inadvertence. The application was hotly contested. It vas urged that Kaloo being a vendee was a necessary party, and his exclusion as a party rendered the suit beyond time and bad for partial pre-emption.
4. Before framing regular issues the trial Court heard argument to the parties and formed the opinion that Kaloo could not be impleaded as defendant after limitation, and because of his absence the suit was bad for partial pre-emption and it could not proceed.
5. 1n support of this appeal, learned counsel for the appellants, submitted that appellants' suit had been dismissed immediately on the, dismissal of their application for impleading Kaloo, the fourth vendee as a defendant in the suit without giving the plaintiffs-appellants any oppor--tunity of being heard. According to the learned counsel if the said opportunity had been granted, the plaintiffs-appellant would, have adduced evidence to prove that the suit could still proceed. When questioned as to what evidence the appellants would have produced if such an opportunity had- been provided to them, learned counsel submitted that they would have established that Kaloo had contributed such sum towards the sale price as was proportionate to his 1760/9691 share in the land in question which made the transaction of sale divisible and suit competent in respect of the remaining land pertaining to the share of the remaining vendees who -had already been impleaded as defendants in the suit.
6. We are not inclined to accept this contention. The plaintiffs --appellants had not raised the question in their plaint that transaction was divisible but bad on the other hand filed the suit on the basis of transac--tion being indivisible. They cannot now be allowed to set up anew case and urge that this sale transaction was divisible. The sale clearly shows that the consideration bad been paid in lump sum and therefore, it constituted a single indivisible transaction. Therefore for the purposes of this case, the said sale transaction will have to be taken as a compact and indivisible sale. There can be no presumption as to the divisibility of the transaction merely on the basis of the recital in the deed that the vendees took the property in specified share if the consideration was mentioned as a lump sum. It is laid down in Abdulluh v. Abdul Karim (PLD 1968 SC 140) that the sale would be divisible only if the shares of the different vendees were specified and if the different vendees had contributed proportionately towards the sale price. That being not the position in the instant case the sale in hand cannot be deemed to be divisible for purposes of pre--emption.
7. Confronted with this situation the learned counsel urged that even if the said transaction was indivisible, the suit could not have been dismissed simultaneously with dismissal of the application for impleading the fourth vendee as a defendant, because if the plaintiffs-appellants had been granted an opportunity, they would have volunteered to pre-empt the remaining 7981/9691 land falling to the share of the rest of the three vendees on payment of entire sale-price actually paid or fixed in good faith. The learned counsel has placed reliance on Muhammad Beg and another v.
Muhammad Ashraf Khan and others (PLD 1973 Azad J & K 71) in that regard. In that case the pre- emptor had failed to implead a female heir of the vendee who had died several years ago, as a consequence of which the pre-emption suit as against her had abated. In that situation it was observed that the plaintiff was entitled to pre-empt the rest of the land on payment of whole of the sale-price. It is argued on the basis of East and West Steamship Co. v. Queensland Insurance Co. (PLD 1963 SC 663) that misjoinder or non--joinder of "proper" party does not result in failure of the suit. Order I, rule 9, C. P. C. Clearly provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every B suit deal with the matter in controversy so far as regards the right and interests of the parties actually before it. It is true that non-joinder is not fatal, but where there is a non-joinder of necessary party, i.e. a party who ought to have been joined and in whose absence an effective decree cannot be passed the suit will ultimately fail. That being the position, we cannot rely on the view taken in Muhammad Beg's case.
It is authoritatively laid down in Malik Hussain and others v. Lala Ram Chand and others (PLD 1970 SC 299) that the right of pre-emption is in essence a right of substitution, it means that the pre- emptor, in the event of the success of his claim, stands in the shoes of the vendees as respects all rights and obligations arising from the sale of the property under pre-emption. It follows, therefore, that unless the statute conferring the right of pre-emption otherwise provides, the pre-emptor must take over the whole bargain that is to say, the pre-emptor must seek pre-emption of the whole of the subject-matter of the sale and pay the entire price paid by the vendees as consideration. This is however subject to the exception that in the following three categories of cases partial pre-emption would be permissible provided the wholesale money is paid :-
(i) When the pre-emptor himself claims title to a part of the lands sold to a share out of those lands.
(ii) When the pre-empter assails the vendor's title to a part of the lands sold or the extent of his title thereto.
(i.e) When the pre-emptor sets up title of third persons to a part or share of the land sold.
The instant case does not fall in any one of these categories. In that view of the matter it is laid down by this Court in Ahmad Khan v. Muhammad Azal and others (PLD 1979 Lah) that in case where one of the vendees is omitted from being impleaded as a defendant in a pre-emption suit' in order to see whether a transaction of sale sought to be pre-empted is divisible or riot two requirements at least have to be met with, first, that there should be specified shares in which the vendees have purchased the land, secondly, that there is proof positive of the specific and separate contribution made by each of the vendees towards the sale-price. It was held further that by an omission to implead one of the vendees as defen--dant within the prescribed time limit protection of section 153, C.P.C. Cannot, be given to such case in teeth of specific provision of Order 1, rule 10, C.P.C. Read with section 22 of the Limitation Act (IX of 1908). It is also held in Niaz Ali Khan and others v. Muhammad Afzal Khan (AIR 1924 Lah. 230) that where in a pre-emption suit one of the vendees was not included as defen--dant till after the expiration of the limitation, due to the mistake of the minor plaintiff's next friend, the suit should be dismissed although the plaintiff was a minor., That being the rule laid down it was not necessary for the Court to have waited for the pre- emptor to make an application to show his intention that he wanted to pre-empt a part of the sale but pay the full price. The learned trial Court was, therefore, justified in dismissing the suit for partial pre-emption. For the foregoing reasons we do not find any force in the appeal and the same is dismissed with no order as to costs.