This is a second appeal directed against the judgment and decree of the learned District Judge, Sialkot, dated 14-10-1.978 whereby he upheld the judgment and the decree of the trial Court dated 17-9-1975.
(1) Is suit for partial pre-emption? O. P. D.
(2) Is suit Benami and is at the instance and expense of Boota, Khadim Hussain and others, if so, with what effect? O. P. D.
(3) Is suit collusive? O. P. D.
(4) Is suit time barred as per preliminary objection No. 4 of the written statement? O. P. D.
(5) Whether the plaintiff has superior right of pre-emption qua the vendees? O. P. D,
(5) Whether ostensible sale price of Rs.33,000 was bona fide fixed or actually paid? O. P. D.
(7) On non-proof of above issue what was the market value of the suit land at the time of sale? O.
P. Parties.
(8) Relief.
2. After recording the evidence the trail Court found that the suit was not rightly instituted unless all of the vendees were properly impleaded. It was held that the suit was barred by time because Mst.
Bushra was repre--sented through a guardian-ad litem much after the expiry of limitation; and that the suit was also held liable to be dismissed on account of partial pre-emption. The suit was dismissed also on the ground that it was filed for the benefit of the vendees. In appeal the learned District Judge almost endor--sed the view formed by the trial Court, but apparently failed to discuss the evidence on the point of the collusive and benami nature of the suit and thus did not come to an independent conclusion.
3. Reliance has been placed on Ali Muhammad v. Muhammad Hussain and others (1980 CLC 2214) to contend that the suit could not have been instituted against a minor without a guardian-ad !Item, and it would be deemed to be instituted only on the date when the minor is sued through its guardian. The case is distinguishable and has no application to the facts of the instant case. It is not a case that Mst. Bushra was not impleaded as a party. The only defect in the suit was that she was minor but she was not shown as such and was thus not represented through a guardian-ad litern. The mistake, as it appears, relates to the description of the party and not its non-joinder. It cannot, therefore, be said that an error of this type rendered the suit barred by time or by partial pre-emption. It is laid down in Muhammad Ismail and others v. Muhammad Sarwar and others (PLD 1978 Lah. 1461) that a minor incorrectly described as major and impleaded in a suit is to be considered a party to the case from the date of the institution and not from the date when arrangement of his proper representation as a minor was made by the plaintiff. This view was formed on the basis of various authorities holding that where a minor by bona fide mistake is impleaded as a major plaintiff, he does not become a new part within the meaning of section 22 of the Limitation Act, from the date the mistake is corrected and he is treated as a major. The same is the position in Alamgir and others v. Nasir Alt and others (1981 CLC 375). The learned Courts below have, therefore, erred in dismissing the suit as being barred by limitation or otherwise holding it defective on account of partial pre-emption.
4. On the question of the suit being benami and collusive as embodied in issues Nos. 2 and 3, the learned District Judge has failed to discuss the evidence and come to his own conclusions of fact independently, but for this failure alone I do not consider it fit to remand the case at this late stage for re-writing the judgment on these issues. I, therefore, take up this question myself and decide it at this stage.
5. On these issues the defendants have produced Abdullah (D. W. 2) and Sardar Muhammad Patwari (D. W. 5). Abdullah stated that the plaintiff was not interested in the property in dispute because he had already sold away his entire property to Boota and Khadim Hussain, and that the present suit was filed by him on their persuasion, that was why they were bearing all the expenses of the litigation. Sardar Muhammad Patwari (D. W. . 5) produced mutation No. 1401 dated 27-3-1968 to endorse that the plaintiff had alienated his entire property in the village. But in cross- examination he bad to admit on the basis of the Jamabandi (Exh. P. 7) that the plaintiff still held a sub--stantial property in the village. May it be so, but this much evidence would not indicate that the suit was benami, collusive or was filed for the benefit of any person other than the plaintiff himself. Ali Muhammad appeared as P. W. 1 in the capacity of Mukhtare Khas of the plaintiff and admitted that he alongwith Boota and Khadim bad purchased the property from the plaintiff by Mutation No. 1401, and that the plaintiff was not residing in the village for a very long time.
6. Learned counsel tried to show that the plaintiff was not himself interested to prosecute the suit, that was why Ali Muhammad in whose favour he bad already alienated his property had taken charge of the case and got himself appointed as mukhtar of the plaintiff. To show his dis-- interestedness in the village life, it was emphasized that the plaintiff by selling away a major portion of his agricultural property had left the village and permanently settled in Gujranwala.
These facts, if taken as correct, are not sufficient to constitute collusion of any type with Boota and Khadim as alleged by the respondents. As laid down in Mehar Kamir v. Wali Muhammad crud others (PLD 1972 Lah. 287) it is necessary before a pre-emption suit can be defeated on the grounds of waiver and collusion to establish by the strictest evidence that the object of the plaintiff was really to secure the land for a third person. It needs be pointed out that suit cannot fail on the ground that the pre-emptor had been financed by other persons or that he had even entered into some agreement to transfer property subsequently in favour of some other persons. Muhammad Ashraf also appeared as D. W. 6 and tried also to show that during the continuance of the suit the plaintiff did not appear in Court on any paishi. But at the same time he had not been able to give any direct evidence that the suit was filed for the benefit of Boota and Khadim. In the absence of any material evidence on record it was not made out that the suit was collusive or benami for the benefit of the vendees. The findings of the two Courts on issues Nos. 2 and 3 are set aside.
6. The trial Court found that the plaintiff appellant had a superior right and that the sale price fixed in good faith and actually paid was Rs.33,000. These said findings have not been agitated before me, and the parties did not consider it proper to address me on these issues. I; therefore, uphold the findings of the trial Court on issues Nos. 5 and 6.
For the foregoing reasons I accept the appeal, set aside the judgment and decree of the Courts below, and decree the plaintiff's suit with costs, on payment of Rs.33,000 including the 1/5th pre- emption. Money, if already deposited. This amount shall be deposited in the trial Court on' or before 30th June, 1981 failing which the suit shall stand dismissed.