MUHAMMAD AKRAM, J.--The suit by the respondents Nos, 1 and 2 for possession of the land in dispute by pre-emption was decreed by the Administrative Civil Judge, Jhang, on the 18th of March 1968, and the aggrieved defendant has come up in this appeal to this Court against the decree.
2. The land in suit measuring 245 kanals and 5 marlas situated in the estate of Lau, Tehsil and District Jhang, belonged to one Bandu. He sold this land to Imam Din, Niaz Muhammad and Abdur Rahim, defendants Nos, 1 to 3, ostensibly for Rs, 30,000.00, by means of Mutation No, 640 (Exh. P. 2) sanctioned on the 26th of December 1967. Afterwards, by means of another Mutation No, 651 (Exh. P.
3 ) attested on the 9th of February 1967 Imam Din and Niaz Muhammad, in turn sold their 51/55 share in the land to Allah Dad Khan and Ali Nawaz, defendants Nos, 4 and 5, for Rs, 30,000.00.
3. In these circumstances, on the 16th of February 1967, Ahmad Khan and Muhammad Nawaz, brought the suit against defendants Nos, 1 to 5 for possession of the land in dispute measuring 245 kanals and 5 marlas by preemption on payment of Rs, 11,000.00 or the market value fixed by the Court. The plaintiffs have based their superior right of pre-emption on the ground that they are co- owners in the estate as compared to the original vendees, defendants Nos, 1 to 3 who were strangers. The plaintiffs have further alleged that although defendant No, 4 was himself a land owner in the estate but by associating with defendant No, 5, a total stranger, in purchasing a portion of the land from defendants Nos, 1 and 2, he tco has lost his right of pre-emption and was relegated to the position of a mere stranger. In these circumstances, the plaintiffs have advanced their claim to the possession of whole of this land by pre-emption against all the defendants.
4. Imam Din, defendant No, 1, filed a separate written statement resisting the suit of the plaintiffs.
Abdur Rahim, defendant No, 3, likewise filed a separate written statement controverting the allegations of the plaintiffs and contested their suit. Allah Dad and An Nawaz, defendants Nos, 4 and 5 in their joint written statement asserted that Bandu had sold the land to defendants Nos, 1 to 3 for Rs, 11,000.00 which was its market value. They have pointed out that they had already sold away the land, within the period of limitation, to Mst. Fateh Bibi who was a necessary party to the suit.
5. Accordingly, Mst. Fateh Bibi was allowed to be impleaded as an additional defendant No, 6 in the suit, on the 8th of May 1967, the plaintiffs filed an amended plaint, alleging, inter alia that the subsequent sale of the land by defendants Nos, 4 and 5 in favour of defendant No, 6, their own mother, after the institution of this suit, was hit by the principle of lis pendens. But defendant No, 6 in her written statement has denied that the plaintiffs have a superior right of pre-emption as compared to her or that the re-sale of the land in suit to her was hit by the principle of lis pendens.
6. The trial Court framed the following issues in the suit arising out of the pleadings of the parties:--
(1) Have the plaintiffs superior right of pre-emption as against the original vendees defendants Nos, 1 to 3?
(2)Has the defendant No, 4 lost his right if any, by joining defendant No, 5 a stranger with him in the sale by defendants Nos, 1 to 3 in favour of defendants Nos, 4 and 5?
(3)What is the effect of transfer of land by defendants Nos, 4 and 5 in favour of defendant No, 6 and has defendant No, 6 better or equal right of pre-emption with the plaintiffs?
(4)Was the suit land sold for Rs, 30,000.00 and the same amount was actually paid?
(5)If not what was the market value of the suit land at the time of sale?
(6)Is the suit rightly valued for court-fee and jurisdiction? If not what is the correct valuation ?
(7)Relief.
7. After the evidence led by the parties, the learned Administrative Civil Judge, Jhang, on the 18th of March 1968, decreed the suit of the plaintiffs-respondents Nos, 1 and 2 against defendants for possession of the land in dispute by pre-emption, on payment of Rs, 11,000.00. On issue No, the found that the plaintiffs were proved to be the land-owners in the estate having a superior right to pre-empt the sale as compared to the original vendees, defendants Nos, 1 to 3, who were strangers. Under issue No, 2, the Court held that defendant No, 5 was a stranger in the estate and that defendant No, 4, by associating with him in the purchase of a portion of this land, from defendants Nos, 1 and 2, had lost his right of pre-emption. The further sale of the land by defendants Nos, 4 and 5 to Fateh Bibi, defendant No, 6, was found to be collusive and not bona fide one, hit by the doctrine of lis pendens. Under issues Nos, 4 and 5 the Court was of the opinion that the parties have failed to establish that the price of Rs, 30,000.00 for the land was fixed in good faith or actually paid. The market value of the land at the time of the sale was found to be Rs, 11,000.00 only. The deficiency in the valuation of court-fee was made up by the plaintiff under issue No, 6 above.
8. Dissatisfied with the decree, Mst. Fateh Bibi, defendant No, 6, has come up in appeal against it. It is necessary at this stage to recapitulate in brief the steps taken by her by which she came to possess the whole of the land in suit. By means of Mutation No, 640 (Exh. P. 2) sanctioned on the 26th of December 1966, Bandu had sold the land in dispute, measuring 245 kanals and 5 marlas, to Imam Din and Niaz Muhammad, defendants, 51/55th share and Abdur Rahim defendant 4/51st share, for Rs, 30,000.00. Thereafter, by means of another Mutation No, 651 (Exh. P. 3) attested on the 9th of February 1967, Imam Din and Niaz Muhammad sold away their 51/55th share in the land in suit to Allah Dad and Ali Nawaz, defendants Nos, 4 and 5, for Rs, 30,000.00. But Abdur Rahim, defendant No, 3, did not join in this sale of his share to them. Admittedly, at the time Ali Nawaz, defendant No, 5 was a stranger in the estate and did not own any land. The plaintiffs filed this suit for pre-emption in the trial Court on the 16th of February 1967. After the suit.
Allah Dad, defendant No, 4, sold away the land measuring 282 kanals 12 marlas inclusive of his share in the land in the suit purchased by him, to his mother, Mst. Fateh Bibi, defendant No, 6 for Rs, 35,400.00 by means of a Mutation No, 657 (Exh. P. 6), dated the 17th of April 1967. Similarly, Allah Nawaz sold away his share in the land in dispute along with certain other land belonging to him, in all measuring 226 kanals 6 marlas and some trees, to his mother, Mst. Fateh Bibi, for Rs, 29,100.00 by means of a Mutation No, 655 (Exh. P. 7) attested on the 17th of April 1967. Likewise by means of yet another Mutation No, 654 (Exh. D. 4), sanctioned on the 17th of April 1967, Abdur Rahim sold his 4/55th share in the land in dispute along with certain other land belonging to him to Mst. Fateh Bibi defendant-appellant for Rs, 3,500.00. In this manner, she had purchased the entire land in suit, measuring 245 kanals 5 marlas, along with the certain other lands, in the estate by the 17th of April 1967. It is common ground between the parties that she was already an owner in the estate in her own right, having succeeded to the land left by her father by virtue of Mutation No, 637 (Exh. D. 3) sanctioned on the 24th of July 1965.
9. Exh. P. 1 is a certified copy of the khatuni showing that the plaintiffs were the land-owners in the estate. D. W. 3, Imam Din, admitted in his cross-examination that at the time of the sale of this land to defendants Nos, 1 to 3, they were not the owners in the estate. Therefore, it was not seriously disputed before us that as compared to the first vendees-defendants Nos, 1 to 3, the plaintiffs have a superior right to pre-empt the sale of the land.
10.But actually even before the suit, on the 9th of February 1967, defendants Nos, 1 and 2 had sold their 51/55th share in the land in dispute to Allah Dad and Ali Nawaz, defendants Nos, 4 and 5 for Rs, 30,000.00 by means of the Mutation Exh. P.
3. Admittedly, at the time, Allah Dad was a co-owner in the estate. But All Nawaz defendant had already transferred his entire holding in the estate in favour of his wife, Mst. Shamim Akhtar, by an oral gift, vide Mutation No, 648 (Exh. D. 5) sanctioned on the 26th of December 1966, thereby he was reduced to the position of a stranger in the village.
The learned counsel for the plaintiffs-respondents Nos, 1 and 2 have, therefore, argued before us that by associating with Ali Nawaz in purchasing a portion of the land in suit, Allah Dad defendant has lost his right of pre-emption and he too was reduced to the level of a mere stranger in the estate, unable to resist the suit of the plaintiffs.
11.In this connection in Imam-ud-Din and another v. Nur Khan and another the facts were that one purchaser having right of pre-emption superior to the plaintiffs had joined in the purchase with a person who had no such right. In these circumstances it was held that the said purchaser could not be allowed to rely on his own right so as to defeat the claim of the plaintiff for pre-emption. Murad v. Mine .Khan and others and Achhru and others v. Labhu and others are also to the same effect that if a purchaser having an equal right of pre-emption associates with himself in the purchase a person with rights inferior to those of the pre-emptor, he is not entitled to resist the claim of such preemptor to enforce his rights even as to his share of the purchase. This view was also upheld in Yakub Khan v. Karman and others and it was observed that : "if a purchaser having an equal right of pre-emption associates with himself, in a transaction, that is indivisible a person with rights inferior to those of the pre-emptor. he is not entitled to resist the claim of such pre-emptor to enforce his rights even as to his own share of the purchase". Also in Bhagwana and others v. Shadi and others it was held that: "if a purchaser having an equal right of pre-emption associates with himself in the purchase a person with rights inferior to that of the pre-emptor, he is not entitled to resist the claim of such pre-emptor to enforce his rights even as to his share of the purchase". This view was followed with approval by Din Muhammad, J. in Pandit Harbangwan Dad v. Sardar Partap Singh and others. Therefore, in our opinion, the status of Allah Dad defendant No, 4 must be considered to have sunk down to the level of a mere stranger by joining with defendant No,
5. He was, therefore, not entitled to resist the suit of the plaintiffs-pre-emptors on this ground even qua his share.
12.After the suit but before the period of limitation to pre-empt the original sale in dispute had1 2 3 4 5 6 expired, Allah Dad, Ali Nawaz and Abdur Rahim defendants, by means of three separate Mutations (Exhs. P. 6, P. 7 and D. 4), sanctioned on the 17th of April 1967, resold the land in suit to Mst. Fateh Bibi, defendant-appellant. The Court below has doubted the genuineness and bona fide of these sales to her and has also held that they were hit by the doctrine of lis pendens, and consequently she could not resist this suit against the superior right of the plaintiffs to preempt the land sold by Bundoo.
13.The finding by the Court below to the effect that the subsequent re-sales of the land in dispute by defendants Nos, 3, 4 and 5 to the appellant were not genuine and bona fide, is wholly unwarranted. The plaintiffs did not even raise any plea to this effect in their amended plaint against her. Moreover, there was no issue framed by the trial Court in this connection. In this connection the onus rested on the plaintiffs to allege and prove that these sales were not genuine.
In our opinion, therefore, the trial Court was not at all justified in finding against the appellant in this respect.
14.However, the main question that remains to be considered is about legal effect of the onward re-sale of the land in dispute by Abdur Rahim defendant No, 3, Ali Nawaz defendent No, 5 and Allah Dad defendant No, 4, by means of Mutations Nos, 654, 655 and 657 attested on the 17th of April 1967, after the institution of this suit, in favour of Mst. Fateh Bibi, the appellant. It is proved from the evidence that the appellant was an owner in the estate in her own right and it was contended before us that she had purchased this land in dispute in assertion of her superior right of pre- emption, within time, against all the defendants and that as such she was in a position to successfully resist this suit brought by plaintiffs-respondents Nos, 1 and 2. In this connection in Mughal v. Jallal and others it was contended on behalf of the plaintiff that "regard must be had to the original transaction in which two vendees, who had equal rights with plaintiff, had joined with them in the purchase a third whose right was inferior to that of plaintiff, and that the right of pre- emption which plaintiff would in consequence had as against the original vendees could not be defeated by the subsequent elimination of the stranger and the substitution of a person against whom plaintiff had not a superior right". But this contention was overruled and the Court observed : "The fact that at one stage a stranger had had a share in the bargain cannot, in our opinion, be held to vitiate the right of the three persons who are now vendees, and resist plaintiff's claim with one that is not inferior to his. It cannot be properly contended that Karam Chand merely took the position of the stranger in the bargain and can claim to better right than that derived from him. The position that he took was in virtue of his right as a pre-emptor to whose superior right the stranger had yielded. Nor is there any force in the contention that the two original vendees who remained in waived their right as against the plaintiff by having admitted a stranger. No doubt plaintiff obtained a cause of action against the three original vendees on the first sale, but the same may be said where there is a sale to a single stranger vendee who subsequently transfers to a person having an equal right with the plaintiff. To admit the argument which it is sought to found on that would be to strike at the root of the principle on which the decisions of this Court are founded."
15. Although, at one time there was a considerable divergence of opinion, but the view seems to have prevailed that the pre-existing rights of a subsequent vendee during the suit, are not adversely affected and hit by the rule of lis pendens. In this connection in Muhammad Khan v.
Khuda Bakhsh the Court has held that the doctrine of lis pendens does not apply to a sale of immovable property subject to a right of pre-emption by the original vendee in favour of a pre- emptor with superior rights, who had instituted a suit to enforce his rights during the pendency of similar suits by other claimants with inferior rights. Similarly in Sundar Das and others v. Sayan Singh and others, it was held that where after the institution of a suit for pre-emption another pre- emptor asserted his right of pre-emption privately and the vendee, in recognition of his right transferred the property to him, the doctrine of lis pendens did not apply to such transfer, and that7 8 9 the same would bar plaintiff's suit, unless plaintiff had superior right of pre-emption to the transferee. This matter was fully examined by a Full Bench of the Lahore High Court in Moo!
Chandand others v. Ganga Jal and others. In this connection the Full Bench has held that no doubt the rule of lis pendens applied to pre-emption suits but it did not affect the validity of the sale effected by the vendee during the pendency of the pre-emption suit to a person possessing a right of pre-emption equal to that of the pre-emptor, the reason being that such a sale does not really offend against the true rule of lis pendens and the purchaser can successfully defend his title on the ground of his pre-existing right, in case it was equal or superior to the preemptor. Similarly in Mustaqim Khan v. Abdullah Khan and others the Court has held that the re-sale does not really vest any new rights. All that the subsequent vendee does in such a case is to take the bargain in the assertion of his pre-existing pre-emption right, and hence, the re-sale does not offend the doctrine of lis pendens. It was further observed that "if a person possessing a superior right of pre- emption to the pre-emptor instead of buying the suit property privately brings a pre-emption suit in respect of the same property, his suit will succeed and the pre-emptor will be non-suited.
Consequently there is no cogent reason why the same result should not follow in case such a person instead of bringing a pre-emption suit buys the suit property out of Court from the first vendee. It is also well-established that a vendee may sell to a person who has an equal right with the pre-emptor or who has a superior right to the pre-emptor, ante litem, so as to defeat the pre- emptor's claim provided the transaction is genuine. This being so, it will be inequitable to permit a pre-emptor to defeat a person who has a superior right of pre-emption and to whom the suit property is re-sold within the period of limitation, simply because the pre-emptor rushes to Court immediately after a sale is effected".
In the instant case, as discussed above, the plaintiffs-preemptors have failed to establish that the subsequent re-sale of the land in dispute to the appellant by defendants Nos, 4 to 6 was a fictitious and sham transaction. Respectfully following the law laid down in the foregoing decided cases, we hold that the pre-existing right of Mst. Fateh Bibi, appellant, to pre-empt the original sale was in no way adversely affected by the general rule of lis pendens. She was, therefore, able to successfully resist this suit by the plaintiffs brought against her. In Pandit Harbangwan Dad v. Sardar Partap Singh and others the Court has held that there is no distinction between caseswhere the re-sate takes place in exercise of a pre-emptive right and those where the re-sale takes place without an assertion of his right by the subsequent vendee because the effect in both the cases is the same, that is, the purchase of the land in suit by a person possessing a right equal or superior to that of the pre-emptor and, in these circumstances, the fact that the purchase takes place in assertion of the right or otherwise is immaterial. This view was followed with approval in Muhammad Din v.
Muhammad Aslam, in this connection observing that when a person conveys the land to another who is entitled to it the conveyance must be presumed to have been made in recognition of that right.
16. It is no doubt true that under section 21-A of the Pre-emption Act I of 1913 any improvement, otherwise through inheritance or succession made in the status of a vendee-defendant after the institution of a suit for pre-emption shall not affect the right of the pre-emptor-plaintiff in such a suit. But this section has no application to the case of a subsequent vendee who has acquired the property privately in assertion of his superior right of pre-emption. So far as he is concerned, as discussed above, the rule of lis pendens is applicable only with the qualification that it shall not adversely affect his pre-existing right to successfully pre-empt the sale. In Dharam Singh v. Kirpal Singh and others the facts were similar to this case. Baghat Ram vendee, had purchased the land for Rs, 4,000.00 by means of two separate sale deeds. He afterwards transferred the land to Maya Das who in turn sold it to Dharam Singh for Rs, 4,600.00. The Court found that the re-sale to Dharam Singh was made in the exercise of his right of pre-emption, within the prescribed period of10 11 12 13 limitation. The Court repelled the contention that the resale to Dharam Singh was made at a higher price of Rs, 4,600.00 and consequently this could not be considered to be in exercise of his superior right of pre-emption. In this connection the Court has observed :-- "The fact that he paid a higher price than that which the first purchaser had paid does not show that he was entering into a new bargain, and I agree with the observations of the learned Subordinate Judge on this point. A pre-emptor may be willing to pay a higher price in order to avoid the uncertainty, trouble, and expense of litigation, and if he settles privately with the purchaser in this way, instead of bringing a suit, it would not be right to say that he has not exercised his right of pre-emption."
Some arguments were also addressed before us to the effect that the integrity of this bargain was broken by the first vendees and then afterwards by the second vendees, eventually transferring the land in dispute to the appellant, Mst. Fateh Bibi, by means of separate and distinct transactions. As such, so it was contended, that the eventual transfer of this land to the appellant could not be deemed to be in assertion of her superior right of pre-emption of the original sale. But in our opinion, the rule against partial pre-emption really operates against a pre-emptor. It has no application in case the vendee was responsible for breaking the integrity of the original sale. Udhe Ram and another v. Atma Ram and others. On principle, we cannot hold that after the sale, in case the first vendees have broken the integrity of the transaction and transferred the land to different persons, the pre-emptor with a superior right of pre-emption is precluded from following the property in the hands of the ultimate transferees. On this view of the matter, therefore, we find that there is no force in this contention. As discussed above, in this case, the appellant has privately purchased the land in suit from all the different subsequent transferees, in assertion of her right of pre-emption, within the period of limitation prescribed for the suit. The plaintiffs-pre-emptors did not have a superior right of pre-emption against Mst. Fateh Bibi, the ultimate transferee of the whole of this land. In these circumstances, we find that the suit of the plaintiffs for possession by pre-emption against her was not liable to succeed and the judgment under appeal must be reversed.
17. For the foregoing reasons, we accept this appeal and in reversing the decree by the lower Court, we have to dismiss the suit of the plaintiffs-respondents. But there shall be no order as to costs in the circumstances of this case. 10 P R 1884 94 P R 1895 48 P R 1907 66 I C 466 AIR 1934 Lah. 878 AIR 1938 Lah. 242 69 P R 1898 26 P R 1908 53 P R 1911 AIR 1930 Lah. 356 PLD 1951 Pesh. 1 PLD 1954 Lah. 541 AIR 1923 Lah. 31(2) AIR 1924 Lah. 431 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14