' Hassan Khan and Mst. Gul Fairoza brought a pre-emption suit in respect of some property on the ground of co-sharership. It was alleged by them that Mst. Rape Jana had sold the suit property to Ghulam Samdani for a sum of Rs, 99 but Ghulam Samdani re-transferred the said property to her per unregistered sale-deed dated 3-11-1%8 for Rs,
99. They being co-shares had a superior right of pre-emption.
2. During the pendency of the suit Malik Amir Sher brought Suit No, 567/1 on 18.11-1967 pre-empting the sale in favour of Mst. Rape Jana and a decree was passed in his favour on 5-12-1967 on the basis of a compromise. The pre-emptors Hassan Khan and Mst. Gul Fairoza came to know of this decree and impleaded Malik Amir Sher as a defendant in their suit. The defendants submitted their written statements wherein they denied the superiority of the pre-emptive right of the plaintiffs and averred that the suit was bad for partial pre-emption and the plaintiffs were ousted by the compromise decree in favour of Malik Amir Sher.
3. The pleadings gave rise to the following issues :-
(1) Whether the suit is vague, if so, its effect? 0. P. D.
(2) Whether the suit is for partial pre-emption, if so, its effect? 0. P. D.
(3) Wbat is the effect of the pre-emption decree passed in favour of Amir Sher defendant on the basis of compromise with defendant No, 1? O. P. D.
(4) Whether plaintiff has superior right of pre-emption? 0. P. D.
(5) Whether Rs, 99 have been fixed in good faith and paid as sale consideration? 0. P. D.
(6) Market value ?
(7) Relief.
' After recording such evidence as the parties wished to adduce Senior Civil Judge, Bannu passed a decree in favour of the plaintiffs for possession of half the suit property on payment of Rs, 49.50 on 27-4-1968. Hassan Khan took an appeal but it was dismissed by the District Judge, D. I. Khan per his order dated 19-11-1970. Aggrieved from the judgment and decree Hassan Khan has come on second appeal to this Court.
4. It would be profitable to narrate certain facts which are relevant for the determination of the point at issue between the parties. The suit property was transferred by Ghulam Samdani in favour of Mst. Rape Jana per unregistered deed dated 3-11-1966 for Rs,
99. Hassan Khan and Mst. Gul Fairoza brought pre-emption Suit No, 540/1 on 2-11-1967. During the pendency of their suit Malik Amir Sher brought pre-emption Suit No, 567/1 on 18-11-1967 against Mst. Rape Jana and Ghulam Samdani. A compromise was arrived at between Malik Amir Sher and Mst. Rape Jana whereby the suit was decreed on 5-12-1967. Mst. Rape Jana averred in her written statement that she had acknowledged the superiority of pre-emption right of Malik Amir Sher and had compromised the suit brought by him and that since a decree had been passed in his favour on 5-12-1967 she had no concern with the suit property. Malik Amir Sher was impleaded as a defendant to the suit and he in his written statement contested the pre-emption suit brought by Hassan Khan and Mst. Gul Fairoza. The learned trial Court held that the pre-emptors Hassan Khan and Mst. Fairoza and Malik Amir Sher being co-sharers with equal share, were equally entitled to the suit land. The learned Dstrict Judge, however, dismissed the appeal of Hassan Khan and Mst. Fairoza inter alia on the ground that they had no superior right viz-a-viz Malik Amir Sher whose appeal was partly accepted.
5. The learned counsel for the appellant strenuously -contended that both the pre-emption suits should have been consolidated as required by section 22, N.-W. F. P. Pre-emption Act and the pre- emption decree passed in favour of Malik Amir Sher to which the rival pre-emptors were not made a party had no effect on the rights of the latter. He added that since the rival pre-emptors had not been made a party to the suit the decree in favour of Malik Amir Sher was non-existent in the eye of law and he lost the superior pre-emptive rights, if any. He in this connection placed reliance on Ghulam Tayyib v. Shahro Khan and others. Dealing with the provisions of Section 28. Punjab Pre- emption Act which are analogous to those of section 28 of the N.-W. F. P. Pre-emption Act it was observed that the effect of the imperative provisions of section 28 was that if one of the suits is decided in the absence of the plaintiff in the other suit, the decision cannot be binding on that plaintiff. No question of lis pendens would in such a case arises.
6. The question that arises is whether the decree passed in favour of Malik Amir Sher would have any effect on the right of the appellant. It is contemplated by section 17, N.-W. ' ' F. P. Pre-emption Act (hereinafter called the Act) that no suit for pre-emption shall lie where the purchaser has prior to the institution of such suit transferred the property in dispute to a person having a right of pre- emption equal or superior to that of the plaintiff. In the instant case the purchaser Mst. Rape Jana had transferred the suit property to Malik Amir Sher Khan during the pendency of the suit of the appellant and not prior to it. The transfer is obviously in violation of the mandatory provisions of section 17 of the Act. It may be pointed out forthwith that the word 'transfer' in section 17 of the Act is significant and it is to be determined whether the compromise decree was tantamount to transfer in favour of Malik Amir Sher. Such a question came for consithration in All Mardan and 3 others v.
Khalid Mahmud and another. Reference was made to section 5 of Transfer of Property Act wherein the terms 'transfer of property' has been defined and his Lordship made the following observation :- "A mere perusal of the above definition shows that the conveyance must be brought about by the act of a person conveying the property and not in any other way. In this view of the matter the decree in a preemption suit cannot be called the act of a person conveying property and the1 2 contention of the learned counsel for the appellants, therefore, seems to be well-founded. I, therefore, hold that the land sold was never transferred to Khalid Mahmud and that section 17 of the N.-W. F. P. Pre-emption Act had no application."
It is evident that the decree in favour of Malik Amir Sher on the basis of a compromise would not amount to "transfer" in his favour under sec-0 tion 17 of the Act, and, as such, shall have no effect on the rights of the rival pre-emptors.
7. It is common ground between the parties that the pre-emptors Hassan Khan and Mst. Gul Fairoza as well as Malik Amir Sher are co-sharers in the suit land. A look at the pedigree table in Mutation No, 601 attested on 7-2-1945 shows that Muhammad Ghaus was succeeded by three sons, three daughters and a widow. Each of the son got 14/72 and each daughter 7/72 share in his estate. The pre-emptors Hassan Khan and Mst. Gul Fairoza inherited 21/72 and Malik Amir Sher 14/72 share. The latter purchased 7/72 share of his sister Mst. Sardara and became an owner of 21/72 share. There shall be rateable distribution amongst the pre-emptors under section 13 of the Act and each of them shall be entitled in proportion to the share already held by him in the disputed property. I would, therefore, hold that Hassan Khan and Mst. Gul Fairoza are entitled to 1/2 share on payment of Rs, 49.50 whereas Malik Amir Sher would get the remaining 1/2 share on payment of Rs, 49.50.
' In the result, I would accept the appeal, set aside the judgment and decree of the learned District Judge and restore that of the learned Senior Civil Judge, Bannu. The parties are left to bear their own costs. PLD 1962 B J 1 PLD 1973 Pesh. 167