' This regular second appeal has been filed under section 100 of the Civil Procedure Code by the appellants-vendees as the two Courts below decreed the suit of the respondents for possession through pre-emption.
2. The brief facts giving rise to this appeal are that land measuring 39 kanals 8 marlas situate in village Manjwali Tehsil and District Gujranwala was sold through a sale-deed on 13th March, 1975 by Mst. Hassan Bibi, etc., in favour of the appellants Nazar Muhammad, Walayat Khan, Inayat Ullah, Bashir Ahmad and Mst. Naziran Bibi for an ostensible consideration of Rs, 26,000. The respondent Sami Khan, who died during the pendency of this appeal and his legal heirs were brought on the record, filed a suit for possession through pre-emption on the basis of preferential right on two-fold ground that he was collaterally related to the vendors and was a land-owner in the village. The sale price was also contested to be Rs, 20,000 instead of Rs, 26,000 as shown in the sale-deed.
3. On the pleadings of the parties, the trial Court framed four issues, namely :-
(1) Whether the plaintiff has superior right of pre-emption qua the defendants? O.P.P.
(2) Whether the ostensible sale price was fixed in good faith or actually paid? O.P.D.
(3) If 'No' is answer to issue No, 2 above, what is the market value ? O.P.Ps,
(4) Whether the plaintiff is estoppel by his conduct to sue? O.P.D.
(5) Relief.
' It may be mentioned here that while framing the issues, the learned trial Court specifically mentioned that issue on the court-fee had not been pressed. By the appellants who were defendants to the suit because of the Court's order, dated 31st March, 1977. The background is that on 24th February, 1977, the trial Court had ordered that there was a deficiency of Rs, 307 in court- fee which should be made good by 31st March, 1977. The pre-emptor had paid the court-fee at Rs 157.50. On 31st March, 1977, it was ordered that since that date was the last day, therefore, he could file the court-fee on that day.
4. The parties led their evidence and finally the trial Court vide judgment, dated 12th February, 1978 decreed the suit of the pre-emptor Sami Khan. On issue No, 1 relating to superior right of pre- emption, the trial Court held that it was established from the documentary evidence that the pre- emptor was owner in the village whereas the defendants had not produced any evidence. One of the defendants Nazar Muhammad had instead corroborated the version of the plaintiff by admitting that defendants did not own any land in the village Manjwali. It was further observed that Exh. D-2 produced by the defendants showed that only Nazar Muhammad was a tenant-at-will.
However, this was rebutted by Exhs. P-2 and P-3. It was thereafter held that even otherwise, if one of the defendants was a tenant, despite establishment of tenancy, he having associated with the strangers was hit by the doctrine of sinker and thus it was fatal to their case. Reliance in this behalf was placed on a decision of this Court in Atta Muhammad v. Ahmad Bakhsh and 2 others (1). Issues Nos. 2 and 3 regarding the sale price and the market value were decided in the light of the statement of the pre-emptor dated 24th January, 1978 by holding that the sale price was Rs, 26,000. The issue of estoppel was decided against the defendants by disbelievifig the oral evidence of the defendants regarding participation of the plaintiff in the prior transaction of sale.
5. The defendants then appealed before a learned Additional District Judge, Gujranwala who vide nis judgment, dated 19th February, 1979 dismissed the appeal. Before the first appellate Court, the question of deficiency in court-fee was sought to be agitated on the plea that an
(1) PLD 1971 Lab. 401 ' insufficiently stamped plaint was no plaint in the eye of law and the deficiency in court-fee having been made good after the statutory period to enforce the right of pre-emption, it had become hopelessly barred by limitation. The first appellate Court held that the deficiency in court-fee having been made up in compliance with the order of the Court, it shall be deemed to have been paid in the first instance under section 149, C. P. C. And that there was no contumacy on the part of the preemptor. The point, it was further noted, had not even been pressed in the trial Court including the stage of the framing of the issues. The first appellate Court concurred with the findings of the trial Court insofar as the superior right of per-emption is concerned. On issue No, 4 relating to estoppel, it was held that there being no iota of evidence in that behalf, the same was of no avail.
6. The vendees have now come up to this Court to challenge the concurrent judgment and decrees of the Courts below.
7. The learned counsel for the appellants tried to assail the findings of the two Courts below on the question of deficiency in court-fee being made good after the period of limitation by relying on the Supreme Court decision in the case of Mst. Walayat Khatun v. Khalil Khan and another (1).
8. I have not felt persuaded to agree with the submission of the learned counsel because the ratio decidendi of Walyat Khatun's case does not appear to cover the facts of the present case. In the instant case, there was no objection taken by the appellants on the question of deficiency in court- fee. The court-fee was made up under the orders of the trial Court as has already been mentioned in the narration of facts. The appellants did not even claim an issue as observed by the trial Court.
The appellants, therefore, accepted that position, acquiesced in the order and waived the objection: Nevertheless, the ratio of Walayat Khatun's case would not govern the present case because n Court has recorded the finding of contumacy against the pre-emptor in making good the deficiency of court-fee. I have already held in the case of Sardar Muhammad v. Muhammad Sharif Khan (2) that where in a pre-emption suit objection as to deficiency of court-fee was not pressed before the first Court; none of the Courts below had given a finding of contumacy; and deficiency in court-fee had been made up in compliance with the order of the trial Court, no valid exception could be taken to such a course in revision as the power under section 149, C. P. C. To allow payment of deficiency at any stage was discretionary with the Court and on such permission being granted and court-fee being paid, it will be deemed as if the fee had been paid in the first instance. In holding so, the principle enunciated by the Supreme Court of Pakistan in the case of Hafiz Hassan Muhammad and 2 others v. Abdul Hameed and 2 others (3) bad been followed. The earlier decision of the Supreme Court in Walayat Khatun's case was noticed and explained.
9. I may advantageously also refer to the latest elaborate pro-. Nouncement of the Supreme Court in the case of Mst. Parveen v. Mst. Jamsheda Begum and another (4) wherein it has been held that the trial
(1) PLD 1979 SC 821 (2) PLD 1983 Lah. 416
(3) PLD 1982 SC 159 (4) PLD 1983 SC 227 ' Court was fully competent to grant time under section 149, C. P. C. To the plaintiff for supplying the court-fee and when this had been done and the plaintiff had complied with the order passed, the plaint in terms of the aforesaid section shall be deemed to have the same force and effect as if the fee had been paid in the first instance. Thus, the question of bar of limitation would not at all arise.
It was further observed that the trial Court could not have rejected the plaint under Order VII, rule 11, C. P. C. On the mere discovery that the claim was under-valued, unless under clause (b) of rule 11, the plaintiff having been required by the Court to correct the valuation within a time specified by the Court, had failed to do so. Similarly, regarding insufficiency of court-fee, the plaint could be rejected under clause (c) of rule 11, C. P. C., if the plaintiff on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, failed to do so. In the ultimate analysis, it was ruled that if a plaint was presented properly before a proper officer prior to the expiry of period of limitation, then the relevant provision for consideration would be Order VII, rule 11, section 149 and in some cases section 148, C. P. C., as also section 10 (ii) of the Court Fees Act, whereunder a suit can be dismissed for non-compliance with the order of the Court for supply of the requisite fee and not on the ground that for these reasons it had become time-barred. Section 3 of the Limitation Act, whereunder a suit could be dismissed, it was further, held applied only if it was instituted after the period of limitation. There is thus no scope left for the appellant to raise the grounds which tend to go against the above enunciation.
10. This argument must fail also in the light of the view I had taken in the case of Bashir Ahmad v.
Hassan Din and 5 others (1). In this case I had held that where in a case none of the Courts below had given a finding of contumacy on the part of a pre-emptor and the Court's order for making good the deficiency in court-fee bad been complied with, no ground was made out for interference in second appeal with the discretionary order of the trial Court. The learned counsel was thus unable to persuade me to take a view different from that expressed by me in the cases of Sardar Muhammad and Bashir Ahmad as that appears to be in accord with the binding enunciation of law made by the learned Supreme Court of Pakistan. The objection of the appellant fails and is hereby rejected.
11. The learned counsel for the appellants next argued that the trial Court was wrong in relying on the doctrine of sinker and divisibility of transaction while relying on the decision of this Court in the case of Atta Muhammad v. Ahmad Bakhsh and 2 others.
12. I have gone through the precedent cited and find that there is little merit in the plea. A Division Bench of this Court after noticing the earlier view of this Court held- "It is well settled that it is only with a view to retain the homogenous complexion of the estate that a stranger is sought to be kept out in exercise of the right of pre-emption. It is equally well- established that a co-sharer by associating himself with a
(1) PLD 1983 Lab. 455 ' stranger is also relegated to an inferior position making himself vulnerable to the exercise of the right of preemption by another co-sharer who may otherwise be at par with him."
' The objection raised by the learned counsel for the appellants as regards applicability of doctrine of sinker and divisibility of transaction stands answered by the decision of the Supreme Court in the case of Mangta v. Lab Din and others (1) In the precedent case which came up before the Supreme Court out of a pre-emption suit, the Courts below had taken the view that one of the vendees being owner in estate by associating with him other vendees who did not possess such a right, thereby lost superiority of his right. A contention was then raised that transaction of sale was divisible as shares of vendees were specifically mentioned in the sale-deed and hence transaction in petitioners' favour could be separated. It was held by the learned Supreme Court that where in the facts of a case no evidence was produced to establish that payment of price was made by the various vendees in the specified amounts, there could arise no presumption as to divisibility of the transaction, as was earlier ruled by the Supreme Court in the case of Abdullah v. Abdul Karim (2) merely on the basis of the recital in the deed that the vendees took the property in specified shares, if the consideration is paid in a lump sum. Now coming to the facts of the present appeal, the plea of the appellants as regards divisibility of transaction is also liable to fail for the reasons that (i) on a perusal of the sale-deed Exh. D-1, it is crystal clear from the recital made therein that the shares B' have not been specified; (ii) the consideration is paid in lump sum; and (iii) no evidence was produced to establish that payment of price was made by the various vendees in specified amounts. The plea regarding divisibility has thus no merit.
13. There is no other ground urged.
14. The result is that for the reasons stated, this appeal fails and is hereby dismissed with costs.
(1) 1982 SCMR 282 (2) PLD 1968 SC 140