' Nawab Gul and Mst. Dorany who were owners of land measuring 12 Kanals 6 Marlas in Khasra Nos.
693 and 695 situate in the area of Village Sayab in Tehsil and District Kohat transferred the mentioned land in favour of one Saif-ud-Din son of Khana Din of the said village by virtue of a registered sale-deed dated 9-7-1979 ostensibly for a sum of Rs, 60,000. Muhammad Din son of Allah Din resident of Dhok Abdul Khaliq in Tehsil Kohat, claiming superior right of pre-emption pre- empted the mentioned sale by bringing a suit on 22-4-1980. It transpired during the pendency of the suit so brought prior to the institution of the suit by the plaihtiff/preemptor one Rahim Shah son of Mehr Dil having pre-empted the said sale had obtained a decree for possession by pre-emption of the suit land in Suit No, 8/1 instituted on 23-,2-1979. The suit so brought by Rahim Shah was decided on the basis of a compromise between him and the vendee-defendant and as a result thereof a consent decree was passed in his favour on 28-2-19E0. The mentioned development resulted into the amendment of plaint and in the amended plaint the said Rahim Shah decree- holder was also impleaded as defendant No, 2 and the above-mentioned consent pre-. Emption decree was also challenged in the amended plaint alleging that it was ineffective and inoperative on the rights of the plaintiff/pre-emptor Muhammad Din. In his plaint Muhammad Din plaintiff had claimed superior right of pre-emption on all the grounds mentioned in section 12 of the N.-W. F P.
Pre-emption Act. It was further alleged that the ostensible amount of Rs, 60,G00 shown in the registered sale-deed was not paid in full and that in fact a sum of Rs, 20,000 was actually paid by the defendant/ vendee to the vendor on the completion of the sale transaction.
2. The suit so brought was contested by both the defendants Saif-udDin and Rahim Shah and the pleadings submitted by the parties gave rise to the following issues :-
(1) Whether plaintiff has got a cause of action?
(2) Whether suit is not maintainable in its present form?
(3) Whether plaintiff is estopped to sue?
(4) Whether suit is time-barred?
(5) Whether defendant No, 2 had got decree on 28-2-1980 if so, its effect?
(6) Whether plaintiff has got superior right of pre-emption?
(7) Whether sale price was fixed in good faith or duly paid?
(8) What is the market-value?
(9) Relief.
3. After recording such evidence of the parties as they wished to adduce the learned Civil Judge who tried the suit by his order dated 16.7-1981 answered issues Nos. 1, 5 and 6 in favour of the plaintiff wherein it was held that be had a cause of action and the above mentioned consent pre- emption decree in favour of Rahim Shah was ineffective on his right. In connection with issues Nos.
7 and 8 it was held that the amount of Rs, 60,000 was the sale consideration and that the same had been paid to the vendor. The status of defendant No, 2 was held as that of rival pre-emptor and since both the plaintiff and defendant No, 2 were found-co-sharers in the suit land both of them were held to be possessing superior right of pre-emption against defendant No, 1.
Consequently a decree based on a ratable distribution of the Suit land in the light of the provision of section 13 of the Pre-emption Act was passed in favour of plaintiff and defendant No, 2 on payment of different amounts as has been clearly mentioned in detail in the last para. Of the judgment. Holding the plaintiff and defendant No, 2 entitled to the decree of pre-emption in respect of the suit land proportionate to their respective share in the suit land the plaintiff and defendant No, 2 were held entitled to get the property in dispute in the ratio of 33.1, respectively. As such the plaintiff was granted a decree for possession by pre-emption in respect of the suit land to the extent of 11 Kanals 18 Merles on payment of Rs, 58,056 while a similar decree to the extent of 8 Marlas was passed in favour of defendant No, 2 on payment of Rs, 1,944 against defendant No, 1.
4. It transpires from the record of the appellate Court that both Rahim Shah and Saif-ud-Din defendants in the suit preferred separate appeals. Rahim Shah defendant in his appeal challenged the partial decree in favour of Muhammad Din pre-emptor whereas Saif-ud-Din being aggrieved with the finding in connection with the sale consideration fixed by the learned trial Judge challenged the finding of the trial Court to that extent and claimed a sum of Rs, 70,000 instead of the above-mentioned amount held to be the price of the suit land. Vide his detailed judgment dated 18-6-1983 Mr. Muhammad Nawaz Khan, District Judge, Kohat dismissed both the appeals so filed for the reasons recorded in detail in the judgment.
5. Rahim Shah defendant No, 2 in the suit has come up in revision petition against the judgment and decree of both the Courts below.
6. Mr. Abdus Samad Khan, Advocate for the petitioner and Mr. Muhammad Inam Khan, Advocate for the respondent heard and the record perused.
7. The main dispute between the parties in the present revision petition before me is regarding the point as to whether the suit of Muhammad Din respondent was enter tainable and competent when a decree for pre-emption had already been passed in favour of Rahim Shah petitioner who had equal rights with the plaintiff/respondent before the institution of the suit by him. It need to be resolved as whether the findings of the learned Courts below in connection with issue No, 5 were well-founded and Rahim Shah petitioner was rightly treated as rival pre-emptor in the circumstances. The contention of the learned counsel for the petitioner is that since the purchaser Saif-ud-Din had transferred the land in dispute before the institution of the present suit to Rahim Shah petitioner who had equal right with the plaintiff/preemptor, the suit of plaintiff/respondent was not entertainable in view of the provision contained in section 17 of the N.-W. F. P. Pre-emption Act. The contention of the learned counsel for the respondent on the other hand is that the land was never transferred by Saif-ud-Din, the original vendor to the petitioner outside the Court and that acquiring the land on the basis of a pre-emption decree was not a transfer contemplated by section 17 of the N.-W. F. P. Pre-emption Act, and that in the circumstances section 13 of the N.-W. F.
P. Preemption Act was applicable which was correctly applied by the learned Courts below.
8. The learned counsel appearing for petitioner contended that the petitioner had been given a decree before the respondent could institute the present suit and as such the Courts below had become functus officio as there was no sale left with their respondent to pre-empt or for the Court to decide the same by applying section 13 of the Pre-emption Act. He submitted that in recognition of his superior right of pre-emption the defendant/vendee had transferred the land in dispute to the petitioner and it matter little if the mentioned arrangement was brought to the notice of the Court and' the suit was subsequently decided in accordance with the terms of the compromise affected between the parties. According to him a compromise is a settlement which arrives outside the Court without resorting to law and when such compromise is submitted, the Court concerned is left with no discretion but to pass a decree in terms of the compromise so arrived at and as such it shall not be considered the act of the Court but the act of the parties to the compromise.
9. Mr. Muhammad Inam Khan, Advocate representing the respondent on the other hand relying on Ali Mardan and 3 others v. Khalid Mehmud and another (1) submitted that the transfer in question in the name of Rahim Shah by the vendee Saif-ud-Din was not a transfer in recognition of the superior right of pre-emption of the petitioner outside the Court but it was a transfer through a pre-emption Court decree and through the agency of the Court and as such in the circumstances when the petitioner was impleaded in the suit, his position had become that of a rival pre-emptor and was rightly considered as such.
10. The question that arises is whether the consent decree passed in favour of Rahim Shah petitioner would have no effect on' the right of Muhammad Din respondent. It is contemplated by section 17 of the N.-W. F. P. Pre-emption Act, 1950 that no suit for pre-emption shall lie where the purchaser has prior to the institution of 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 no doubt prior to the institution of the present suit the petitioner obtained a consent preemption decree through Court in a preemption suit brought by him against the vendee but 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 Rahim Shah petitioner as contemplated by section 17 of the Act.
The decision of the controversy involved in the present petition thus mainly rests on the meaning of the word "transfer" used in subsection (1) of section 17 of the N.-W. F. P. Pre-emption Act.
11. A similar question came up for consideration in Ali Mardan and 3 others v. Khalid Mehmud and another. In that case reference was made to section 5 of the Transfer of Property Act wherein the term "Transfer of Property" has been defined and his Lordship after reproducing the mentioned definition made the following observations : "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 decree in a pre- emption suit cannot be called the act of a person conveying property and the 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 Mahmood and that section 17 of the N.-W. F. P. Pre- emption Act had no application."
12. Reliance was also placed on Kundan Lal v. Antar Singh and others (2) to which a reference was also made in the above-cited authority of the Peshawar High Court. While dealing with somewhat similar question {{FOOT NOTE}}
(1) PLD 1973 Pesh. 167 (2) AIR 1927 All. 664 {{FOOT NOTE}} their Lordships of the Allahabad High Court made the following observations :- "It matters little who comes to Court first, provided that they all come within the period of limitation.
Section 20 of the Act cannot apply to the case where one rival pre-emptor has obtained a decree for pre-emption first. The expression where the purchaser has transferred the property in dispute to a person having a right of pre-emption, etc. Cannot cover the case of a pre-emptor obtaining a decree for preemption for, as pointed out by us, that is not a case of a transfer by the vendee to the pre-emptor."
13. For the above it becomes evident that the consent decree in favour of Rabim Shah petitioner would not amount to transfer in his favour under section 17 of the Act and as such shall have no effect on the rights of the respondent/pre-emptor.
14. Learned counsel for the petitioner could not cite any clear authority to the contrary but has placed reliance on an Indian Authority reported as A. I. R. 958 SC (India) 838. A perusal of the authority cited above reveals that the controversy involved in that case was somewhat similar to the one in the present case but was obviously based on interpretation of a different law not identical with the relevant provision of the N.-W. F. P. Preemption Act, 1950 and having different facts. Even otherwise the authority so produced has no binding effect on the Courts functioning in this country.
15. Here in the instant case, as already discussed, we are concerned with the question whether land obtained under a pre-emption decree is a transfer of the land for the purpose of section 17 of the Act. The decree in a pre-emption suit cannot be called the st,:t of a person conveying a property and, therefore, getting of land on the basis of a pre-emption decree is not a transfer within the meaning of section 17(1) of the N.-W. F. P. Pre-emption Act, 1950. It has thus become clear that the decree in favour of Rabim Shah petitioner on the basis of compromise between him and the original purchaser would not amount to transfer within the meaning of section 17 of the Act and as such shall have no effect on the rights of the plaintiff/pre-emptor who is to be treated as a rival pre-emptor in the circumstances.
16. There exists no dispute between the parties that both the petitioner and Muhammad Din respondent are co-sharers in the suit land as such were rightly held entitled to the decree of pre- emption in respect of the suit land proportionate to the shares held by them, respectively in the land within the terms of section 13 of the Act.
17. For the reasons stated above I find no merit in this petition which is accordingly dismissed. I would, however, make no order as to costs.