' Saleh Shah petitioner by this petition under section 115 of the Code of Civil Procedure wants that judgment and decrees of both the courts below be set aside and the plaintiff-respondent dismissed with costs throughout.
2. The facts giving rise to the present petition are that Syed Zaffar Ali Shah alongwith his wife Mst.
Jan Amroz brought a suit for pre-emption against Haji Muhammad Saleh Shah, defendant- petitioner, in respect of the land detailed in the heading of the plaint, claiming co-sharership, contiguity and right of way and irrigation. He averred in the plaint that the land belonged to S. Ahmad Ali Shah, who sold the same to the defendant-petitioner for an ostensible amount of Rs, 2,000 but in order to defeat the right of pre-cmption of the plaintiffs, an inflated amount of Rs, 23,175 was entered in the mutation No, 43 attested on 4-3-1974. The defendant-petitioner contested the suit and on the pleadings of the parties the following issues were framed by the learned trial Judge:
(1) Whether the plaintiffs have got a cause of action? 0. P. P.
(2) Whether the plaintiffs are estopped? 0. P. D.
(3) Whether the suit is liable to be dismissed under the Law Reforms Ordinance? 0. P. D.
(4) Whether the suit is incompetent in its present form? 0. P. D.
(5) Whether the suit is within time? 0. P. P.
(6) Whether the sum of Rs, 23,175 was paid or fixed in good faith? 0. P. D.
(7) Market value? O. P. P.
(8) Whether the plaintiffs have got superior right of pre-emption?O. P. P.
(9) Relief?
3. After recording such evidence as the parties wished to adduce, the learned trial Judge vide his judgment dated 13-1-1979 granted the decree prayed for in favour of both the plaintiffs against the defendant-petitioner on payment of Rs, 19,967.73 leaving the parties to bear their own costs.
4. Dissatisfied with the above judgment and decree, two appeals were preferred against them, one by the plaintiffs and the other by the defendant-petitioner. It may be mentioned here that the defendant-petitioner filed his appeal with regard to the increase of the market value from Rs, 19,967.73 to Rs, 23,175, which was allowed by the learned Additional District Judge, Kohat, vide his judgment and decree dated 15-11-1979. Plaintiff, Syed Zaffar All Shah, had filed appeal against the judgment and decree of the trial 'Judge for amendment in the said decree because the trial Judge had granted the same in favour of both the plaintiffs, i,e, Syed Zaffar Ali Shah and his wile Mst. Jan Amroz. In fact, it may be mentioned here, that during the pendency of the original suit, Mst. Jan Amroz, plaintiff No, 2, had applied vide her application on page 28 of the lower Court's file, that her name may be deleted from the array of plaintiffs and the learned trial Judge bad, vide order sheet No, 7 dated 11-10-1975, struck down her name from the panel of plaintiffs, therefore, he was not right in passing the decree in favour of both the. Plaintiffs at the time of finality of the suit. So, the learned Additional District Judge, Kohat, vide the impugned order corrected the mistake and amended the judgment of the trial Court to this effect that the decree for possession through pre-emption of the suit property is granted in favour of plaintiff No, 1 on payment of Rs, 23,175.
5. Learned counsel for the parties heard and record perused. Petitioner's counsel assailed the judgments of both the Courts below on the ground that plaintiff-respondent No, 2 Mst. Jan Amroz had no superior right of pre-emption with regard to the suit property against the defendant- petitioner, therefore, she withdrew her name from the list of plaintiffs. As such, the lower forums were bound to dismiss the suit of the plaintiff, Syed Zafar Ali Shah, on the principle of Sinker; that Order I, rule 10 of the Civil Procedure Code will not come to the rescue of the plaintiff, Syed Zafar Ali Shah, because the Superior Courts have held that merely striking off name of a plaintiff in a suit jointly brought by the other plaintiff, will not cure the defect and the said suit has to be dismissed even then; that in view of the report of the Commission, last appointed and whose report has been accepted by the two courts below, the defendant-petitioner was co-sharer in the discharge of water with the plaintiffs. The learned counsel referred to section 18 of the N.-W. F. P. Pre-emption Act (XIV of 1950) which runs as under :- "Where a person having a right of pre-emption sues jointly with a person not having such right, he shall lose his right; and where a pre-emptor of a higher class sues jointly with a pre-emptor of lower class, he shall have not higher right than the person with whom he so sues."
6. It is an admitted fact that plaintiff No, 2, Mst. Jan Amroz withdrew her name and the learned trial Judge struck down her name from the array of plaintiffs. Therefore, plaintiff No, I, Syed Zafar Ali Shah, who had brought the suit jointly with his wife Mst. Jan Amroz was left with no superior right on the ground of contiguity with the suit land. Besides this, the rule of Sinker, as mentioned above, in view of section 18 of the N.-W. F. P. Pre-emption Act will apply to the present case on all fours, and the suit of the plaintiff was liable to be rejected on this score only, because plaintiff No, 1 Syed Zafar Ali Shah had joined with him a stranger having no preferential right of pre-emption against the defendant-petitioner. The report of the last Commissioner, namely, Shah Jehan Khan Exh. C. W. 1/1, clearly shows that the lands of the defendant-petitioner are irrigated through a tube-well and the water of the house of the defendant-petitioner also discharges on the suit land, which goes a long way to prove that he has got equal right of discharge of water etc. In a case reported in Muhammad Siddique and another v. Syed Zawar Hussain Abidi and 9 others, their Lordships of the Supreme Court have held that plaintiff having joined stranger as co-plaintiff in suit, notwithstanding co-plaintiff later with drawing from suit, suit was rightly dismissed as enjoined by section.18 of the Pre-emption Act. Therefore, while in respectful agreement of the :hove authority, I1 hold that when Mst. Jan Amroz withdrew her name from the list of plaintiffs, the learned trial Judge was bound to dismiss the suit of the plaintiff, Syed Zafar Al Shah, on account of rule of sinker as provided under section 18 ibid. Besides this, the local Commissioner, whose report was accepted by the trial Judge, has held the defendant-petitioner as having equal right of discharge of water. On this score too, the plaintiff's suit was liable to be dismissed by the lower forums,, which they failed to do.
7. The net result of the above discussion is that I accept this revision-petition, set aside the judgment and decrees of both the lower courts and dismiss the suit of the plaintiff, Syed Zafar Ali Shah, with costs throughout. PLD 1976 SC 572