' ABDUL MAJID MALLICK, J.-This appeal, by leave, arises out of the judgment of the High Court, dated 10-6-1978, whereby the decree of preemption allowed by the District Judge was confirmed and appellants' appeal was dismissed.
2. The suit land was purchased by the vendee-appellants through a registered sale-deed dated 18th June, 1972. The sale was challenged by seeking a declaration on the ground of alienation in excess to the share of the vendors and in the alternative, by pre-emption. The right of pre-emption was asserted on the grounds :-
(i) as co-sharer ; and
(ii) relationship with the vendors. During the pendency of the suit vendee-appellants acquired title in the suit land as co-sharers by securing a gift-deed of 8 marlas and 2 (1/2) scrsais from Bashir Ahmed, a co-sharer in the land.
3. The trial Court dismissed the suit for declaration for want of proof and denied the relief of pre- emption by holding that vendee-appellants improved their status by acquiring title in the land by virtue of gift-deed. On appeal, by plaintiffs, the learned District Judge reversed the finding and held that plaintiffs successfully proved their superior right on both the ground and decreed their suit.
The gift-deed was not considered valid for absence o proof of delivery of possession of gifted property and due to the small quantity of gift land. It was held that the gift in question was manoeuvred to defeat the right of pre-emption and the same could not be accepted as free from deception and fraud. On appeal to the High Court, by vendee-appellants, the learned Single Judge of the High Court concurred with the learned District Judge and declined to interfere.
4. The first objection raised by the learned counsel for the appellants is that the learned District Judge and the learned Single Judge of the High Court misread and misconstrued the evidence relating to the issues, (i) on superior right of pre-emption and (ii) delivery of possession of the gift property.
5. As stated earlier the plaintiffs claimed their prior right of purchase on two grounds : viz. (1) co- sharers in the suit land ; and (ii) relationship with the vendors. The assertion of prior right of purchase made in the pleadings was replied in para. 2 of the written statement. The defendant vendees admitted the claim of the plaintiffs as co-sharers in the land, but pleaded that in private partition the suit land fell to the share of the vendors. They expressed their ignorance about the relationship of plaintiffs with the vendors. In or view the aforesaid reply does not amount to denial specifically or by implication. Rule 5 of Order VIII, C. P. C. Enjoins that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. It further lays down in proviso that the Court may in its discretion require any facts so admitted to be proved otherwise than by such admission. In the instant case besides the fact that allegation of fact in the plaint relating to superior right of plaintiff was not denied specifically or by necessary implication, yet the trial Court, by framing issue on the point, desired the plaintiffs to prove their right of pre-emption by evidence.
6. As discussed above the position of plaintiffs as co-sharer in the suit land was admitted in the written statement, but in addition to that this claim was proved by the record of rights produced by the parties. But the prion right on the basis of co-sharer was negated by improvement in the status of vendees through gift of the land including the suit property. The fact o relationship of plaintiffs with the vendors was sought to be proved by documentary and oral evidence. The documentary evidence consists of pedigree-table, Exh. P. B. This document connects the relationship of Adalat Khan plaintiff alone. Muhammad Din, plaintiff who appeared as a witness, failed to link his relationship with the vendors. There was no other evidence worth mentioning on the point of relationship. The learned District Judge and learned Single Judge of the High Court, on appreciation of evidence, misled themselves by showing their satisfaction on the proof of relationship on the hypothesis and conjectures. We may quote the relevant part of the impugned judgment as under :- "After going through the record I will agree with the findings arrived at by the lower appellate Court.
Muhammad Din one of the plaintiffs appeared before the trial Court as a witness to prove that the plaintiffs were related to the vendors who all desceind from a common ancestor. Though in the pedigreetable only one of the plaintiffs finds place yet it does not mean that absence of any one from the table cuts it off from the line of posterity claimed. At the time the pedigreetable was prepared the possibility of one of the forefathers residing somewhere else cannot he ruled out which might have resulted in exclusion of his name from the pedigree-table. The vendees did not know anything in respect of the relationship existing between the plaintiffs-pre-emptors and the vendors and they did not even lead any evidence to rebut the statement of Muhammad Din the plaintiff and so the evidence of Muhammad Din cannot be lightly brushed aside in relation to the relationship stated on solemn affirmation."
The aforesaid finding is purely conjectural and hypothetical. Thus, in or view, the contention of the learned counsel for the appellants is sustainable.
7. We are not impressed by the conclusions made in the impugned judgment on the genuineness and validity of the gift-deed. The gift was executed by Bashir Ahmed, a co-sharer in the Khewat. He transferred his share in the suit land in favour of the vendees. The learned Single Judge of the High Court was not convinced to accept gift on two grounds firstly, that according to the learned Single Judge of the High Court it was proved by the statement of Muhammad Ashraf that possession of the gift property was no delivered to him. Delivery of possession being one of the essential conditions for completion of gift, failure of passing of the possession was considered basic defect to declare the gift ineffective. This finding was ill-founded and misconceived. We have perused the statement of Muhammad Ashraf. In reply to a question, in cross-examination, he expressly stated that possession of the gift property was delivered to him. We have failed to find any supporting evidence to the observation of the learned Single Judge of the High Court. From the statement of Muhammad Ashraf it appears that the learned Single Judge misread and misconstrued the statement of the vendee. The second ground, as disclosed by the learned Single Judge of the High Court, is the meagre quantity of the gift land. The finding is devoid of force, for, in law, quantity of the property transferred through gift was the least condition for holding the transaction valid and legal. In or view, the gift-deed, executed by Bashir Ahmed, a co-sharer, fulfils all the conditions of a valid gift in law. We disagree with the learned Single Judge on this point and hold that the gift was valid in the eye of law.
8. The other aspect of the point, as argued by Raja Muhammad Siddique Khan, the learned counsel for the respondents, is that in replication to the written statement the validity of the gift was challenged on various grounds. This is just to point out that plaintiffs never accepted the gift valid right from the beginning and objected to its legal position in the trial Court. The contention appears to be correct. But the fact remains that plaintiffs did not press their objection and as a result no issue was framed to that effect. The plaintiffs also failed to substantiate their stand by leading adequate evidence. In an almost identical proposition it was held by this Court in Munshi Muhammad Afzal Khan's case , that it was essential for the parties to draw the attention of the Court to the omission of an issue and if an issue was not pressed it must, in the circumstances, be held to have been waived. Applying the principle to the instant case, the objection relating to the validity of gift raised in the replication, when not pressed in the shape of an issue, nor supported by any evidence, leads to the inference that such objection was waived by the plaintiffs.
9. Now as we have settled the respective claims of the parties and h come to the conclusion that by improvement in the status of the vend Muhammad Din, who failed to prove his superior right alongwith Adala was not entitled to any relief. On the premises of this finding Agha Hussain, the learned counsel for the appellants, argued that Adalat Khan who successfully proved his superior right, forfeited it by joining Muhammad Din, having inferior right, as co-plaintiff. In support of the argument he relied on "Badri Singh and another v. Gobardhan and others" and Rahima v. Razzak Ali and another . In both the aforeraid cases pre-emptor was denied the relief for joining with a co-plaintiff having inferior right in degree. The principle relied in the cases cited by the learned counsel is based on the rule laid down in Bhawani Prasad v. Damru , wherein the principle in question as enunciated by Mr. Justice Mahmood was followed in these' ases. In the opinion of the learned Judge, Mr. Justice Mahmood, sources pre-emption were traced to have link with Muhammadan Law. On broad principles it was held that equity in cases of pre-emption will follow the analogies furnished in Muhammadan Law, so long as those rules are consistent with the principles of justice, equity and good conscience. The view was based on the conclusions of a Full Bench of Calcutta High Court in case of "Fakir Rawot v. Sheikh Emambaksh" . The relevant part of the judgment, in Bhawani Prasad's case, is quoted as under :- "It is clear that there exist no definite rules of substantive law by which questions of this nature, relating to the right of pre-emption claimed under the terms of the Wajib-ul-arz, are governed'. It is only on the broad principles of justice, equity and good conscience that such questions can be dealt with by the Courts. The right of pre-emption, though it has undergone some essential alterations, induced either by the force of custom or the express stipulations of co-parcenary bodies of proprietors, is not traceable, at least in these provinces, to any sources other than the influence of the Muhammadan Law. A Full Bench of the Calcutta High Court in the case of Fakir1 2 3 4 5 Rawot v. Sheikh Emambaksh BL R F B Rul. 35 arrived at similar conclusions ; and in two recent cases a Division Bench of this Court has broadly accepted the principle that, in the absence of circumstances to the contrary, the Court in administering equity in cases of pre-emption, will follow the analogies furnished by the rules of the Muhammadan Law of preemption, so long as those rules are consistent with the principles of justice, equity and good conscience."
' The learned Judge further observed as under : - "The rule of law by which a person, entitled to pre-emption, forfeits his right is based upon the principles of equitable acquiescence, which forms one of the most important elements of restrictions imposed upon the, vindictive or capricious exercise of the right of pre-emption. Those restrictions appertain to the very essence and nature of the right-restrictions which, if ignored, would defeat the policy on which the right of pre-emption is based. A person who, whilst possessing the pre-emptive right, takes part in transacting the sale to a stranger, or who, in purchasing property himself, joins a stranger in such purchase, cannot, on the one hand, subsequently object to the sale which has with his acquiescence violated the pre-emptive right; nor on the other hand, can he resist the claim of other pre-emptors who, in suing for pre-emption, vindicate the policy of the right. The rule is, that a person cannot claim a right which he has himself violated, nor can he be allowed to complain of an injury in which he has himself acquiesced.
Applying these principles to the present case, it seems to us that the very fact that Dawn, in suing for pre-emption, joined with him two other persons who had no such right, must be taken to amount to such acquiescence in the sale as estops him in equity from complaining of the sale."
10. Attention of Chief Court of Punjab was invited to this view in Sharaf and another v. Peer Bakhsh and another (1) wherein' a divergent view was expressed. The relevant part of the conclusion is reproduced as under :- "We are unable to assent to the view of the High Court, or to the reasoning upon which it is founded. ' if has a right of pre-emption on a sale by to C, and under the impression that has an equal right with himself, joins him as co-plaintiff, and it appears that has no right, upon what principle can it be held that right is forfeited?
' The analogy between a pre-emptor as purchaser joining a stranger with him in the purchase, and a pre-emptor as plaintiff joining with him a stranger as co-plaintiff, is not so complete as necessarily to entail the same consequences. In the first case, the pre-emptor purchases in violation of the rules regulating pre-emption, and his act is incapable of being undone. In the second, the error is in the form of the claim made in Court, and can be remedied without infringing the right of any person. The question in the former case may be one of the law of pre-emption, or of justice, equity and good conscience ; in the later, it is a question of the law of procedure in enforcing by suit a right of pre-emption. It may be quite just to say to pre-emptor, you alone had a preferential right to purchase, but you and a stranger together had not ; and yet quite unjust to say to him, you have a preferential right of pre-emption to sue the defendant, but you have forfeited it by the erroneous belief that your co-plaintiff had an equal right.
' We have in the present instance to deal with the latter case only, and not with the former.
' There is, in or opinion, no reason why the plaintiff, Makhan, should not maintain this suit alone, after the name of Sharaf has been struck out of the plaint ; and we know no rule either of pre-emption, or of procedure which deprives the plaintiff Kakhan of his right of pre-emption, or requires that his suit should be dismissed because Sharaf was erroneously joined in the plaint as a co-plaintiff. We direct that the name of Sharaf be struck out of the plaint, and that the appeal in the Court of the Divisional Judge be heard on its merits as an appeal by Makhan alone."
' The conclusion of the Punjab Chief Court was consistently followed by Lahore High Court and Supreme Court.
11. A comparative analysis of Allahabad's opinion disclosed that the rule was propounded keeping in view the position of pre-emptor-purchaser, who joined with him a stranger in purchasing of property and disentitled himself by doing so to object to the sale made with his acquiescence in violation to the pre-emption law. Precisely the rule was that a person cannot claim a right which he has himself violated nor he can claim an injury in which he has himself acquiesced. On this analogy rule was applied to a pre-emptor, who joined with himself a stranger as co-plaintiff. It was declared that in such a position a plaintiff having superior right would forfeit the same by sinking his superior right into the position of a stranger. On the contrary, the opinion of the Punjab Chief Court was that the analogy between a preemptor as purchaser joining a stranger with him in the purchase and a preemptor as plaintiff joining with him a stranger as a co-plaintiff, was not so complete as necessarily to entail the same consequences. As in the first case the pre-emptor- purchaser violated rules relating to pre-emption and his act was incapable of being undone. In the second case the error is in the form of the claim liable to be remedied without infringing the right of any person. The question in the former case was one of the law of pre-emption or of justice, equity and good conscience; in the latter, it is a question of law of procedure in enforcing by suit a right of pre-emption. It was considered unjust to tell the pre-emptor that you have forfeited by the erroneous belief that your co-plaintiff had an equal right. In the latter case it was held that the defect or error of joining a stranger or a person of inferior right as co-plaintiff can be revoked by striking off the name of such plaintiff from the plaint under Order I, rule 10(2), C. P. C. This view was subsequently considered in 'Raja and others v. Hussain and others" and by the Supreme Court in Mehr Allah Ditta and another v. Muhammad Ali and another .
12. In Raja's case Mr. Justice Changez made a critical analysis of the case law available on the point and arrived at a conclusion that the view of the Chief Court of Punjab was well-founded. In that case, as in the instant case, the right of pre-emption was claimed by Hussain and Sardar, plaintiffs, as collaterals of the vendors and also being co-sharers in the Khata. The trial Court found that Hussain, plaintiff, had a superior right whereas Sardar had no such right as collateral of the vendors or a co-sharer. Following the principle of Allahabad High Court the trial Court dismissed the suit of Hussain for joining with himself a stranger (Sardar) as co-plaintiff. In appeal before the District Judge name of Sardar was struck off under Order I, rule 10, C. P. C. And suit was decreed in favour of Hussain. In appeal to the High Court vendee-respondent challenged the finding of District Judge and the main objection raised in the appeal was sought on the dictum of Allahabad High Court.
The learned Judge traced out the history of law of pre-emption in Punjab and concluded that the right of pre-emption is merely a corollary of the general principle regulating succession to, and the limited power of disposal of land and has nothing to do with the Muhammadan Law of pre- emption. In his opinion there is marked contrast between the statutory law of pre-emption in Punjab and the rules of Muhammadan Law of pre-emption in many respects. Thus in Punjab the rule of decision in Pre-emption cases was not the rule of Muhammadan Law of pre-emption. In the conclusion it was held that District Judge rightly struck off the name of Sardar, plaintiff, who failed to prove his superior right, and confirmed the decree of pre-emption allowed to Hussain by the District Judge.
13. In Mehr Allah Ditta's case the learned Judges of the Supreme Court adopted an identical view as of Mr. Justice Changez and allowed decree of pre-emption in favour of the plaintiff, who successfully proved his superior right. The facts of the case are identical to the present case.
Muhammad Ali and another alongwith Imam Din jointly filed a suit of pre-emption. Their suit was dismissed for failure to establish their superior right against the vendees. On appeal the learned Additional District Judge, reversed the finding and decreed their suit. In second appeal by the vendees in the High Court it was discovered that Imam Din, plaintiff, was not proved to have superior right. The learned Judge on the strength of the decision in Raja's case struck off the names6 7 of legal representatives of Imam Din and upheld the decree of pre-emption in favour of other plaintiffs. In Supreme Court it was pointed out that plaintiffs, decree-holders, forfeited their right by joining Imam Din, a stranger, as co-plaintiff. Mr. Justice Waheed-ud-Din (as he then was) wrote the judgment on examining the decisions of Allahabad High Court, Oudh High Court, East Punjab High Court and Lahore High Court with the conclusion that the principle laid down in Raja's case should be maintained as correct.
14. The analogy of a purchaser pre-emptor, who purchased the land by' associating with himself a stranger purchaser and thereby deprived himself to assert his superior right of pre-emption, is further rationalised in recent decisions recorded in Pakistan and by this Court. It is held in these cases that where a pre-emptor purchaser joins with himself a stranger purchaser and their share in the purchased property and price paid for it is divisible in such position, purchaser pre-emptor will not forfeit his such position. Reference may be made to "Fazal Dad v. Muhammad Azam and 2 others" .
15. It is admitted that Adalat Khan, who is succeeded by Muhammad Khan, respondent No. 1, successfully proved his superior right, whereas the right of Muhammad Din, co-plaintiff, was not proved. In the circumstances Muhammad Din neither a necessary party nor his presence is required for conclusive determination of the controversy. Order 1, rule 10(2), C. P. C. Empowers the Court to strike out the name of any party improperly joined. As plaintiff or defendant at any stage of the proceedings upon the application of either party or without it, on such terms as may appear to the Court to be just. Muhammad Din, respondent, has moved an application with the prayer that his name may be struck off as plaintiff and controversy may be resolved between the remaining plaintiff-respondents and vendee appellants.
16. In or view the error or defect in the suit, occurred on finding that Muhammad Din, plaintiff, had no right of pre-emption, can be rectified by striking off his name from the plaint. It was pointed out to us that in presence of decree, in favour of Muhammad Din, such an action cannot be taken at this stage. Our answer to the objection is already given in the preceding paragraphs wherein it is held that Muhammad Din failed to prove his superior right and decree in his favour was passed by misreading and misconstruing the evidence. In or estimation decree passed in favour of Muhammad Din is incorrect and the same is set aside.
17. Section 107(2), C. P. C. Provides that the appellate Court shall have the same powers and shall perform the same duties as are conferred and imposed by the Code on Courts of Original Jurisdiction in respect of suits instituted therein. By virtue of this provision of law and under the Supreme Court Rules this Court is competent to strike out the name of a party improperly joined as plaintiff or defendant.
Our conclusions are that the findings of the learned Single Judge of High Court are partly modified.
The decree of pre-emption of the suit land is passed in favour of legal representatives of Adalat Khan against the vendees subject to payment of Rs, 8,000, price of the land, in addition to costs of sale-deed. The decretal amount, if not paid so far, shall be paid within a period of two months from the date of this order, otherwise the suit shall stand dismissed with costs.
In view of or finding, the appeal is dismissed with costs. PLD 1978 SC (A J & K) 73 AIR 1923 All. 187 AIR 1923 All. 256 I L R 5 All. 197 83 P R 1893 PLD 1957 (W. P.) Lah. 52 PLD 1972 SC 59 1980 CLC 18178 1 2 3 4 5 6 7 8