' The facts giving rise to this regular second appeal are that a house in Koocha Dogran, Inside Shahalmi Gate, Lahore, was owned by respondents Nos. 2 to 8, Muhammad Siddiq and others. They sold half portion of the house on the northern side in favour of the appellant, Haji Fazal Hussain, for Rs. 11,500 and the other half portion on southern side in favour of the appellant's wife, namely, Mst.
Khalida Begum, for Rs.11,000. Respondent No. 1, Mirza Din Muhammad, hereinafter referred to as the respondent, pre-empted both the sales by means of separate suits. His suit against Mst. Khalida Begum was dismissed in default and was not restored. His suit against the appellant was, however, decreed by a Civil Judge. The appellant filed an appeal before an Additional District Judge to challenge the judgment and decree of the learned trial Court but in vain. He has, therefore, come up in second appeal to this Court.
2. It was contended by learned counsel for the appellant that the suit giving rise to this appeal suffered from the defect of partial pre-emption and, therefore, it was liable to be dismissed. It was maintained by him that since the house in question was an undivided house, a portion thereof could not be pre-empted.
3. The plea raised by learned counsel for the appellant is an afterthought inasmuch as it does not find mention in the written statement filed by the appellant or in the issues framed by the learned trial Court. It was also not advanced before the learned trial Court at any A stage till the suit was decided. It was only before the first appellate Court that the point of partial pre-emption was canvassed for the first time but without success.
4. There is also no merit in the above plea of learned counsel for the appellant. As indicated above, the house in dispute was sold, in parts, by means of two sales. One half of the house was transferred to the appellant while the other half was sold to his wife by means of separate sale deeds. Separate suits were filed by the respondent to pre-empt the two sales. For the purpose of the present appeal, we are concerned with the sale in favour of the appellant. The respondent had pre-empted the said sale, as a whole, by claiming the entire property involved therein, that is, whole of the portion of the house transferred to the appellant, on payment of full sale price paid therefor by him (appellant). He did not leave anything out of the property sold to the appellant. His suit was, therefore, not for partial pre-emption.
5. As for the argument of learned counsel for the appellant that the sale in favour of the appellant was in respect of an undivided house makes little difference. If a share in any undivided property is sold, only the share sold can be pre-empted and not the share which has not been sold. Since there is no right of pre-emption in regard to the share which has not been sold, the person pre- empting the share sold cannot be non-suited for not pre-empting the share which has not been sold. His right of pre-emption would not extend to the share which is not the subject matter of the sale and, therefore, his suit would not be for partial pre-emption due to his having left out the unsold share. To hold otherwise, would tantamount to exempting sales relating to a share in joint land or undivided property from the operation of the law of pre-emption for which there is no warrant. Since the respondent in the instant case had pre-empted the entire property sold to the appellant by means of the sale-deed in his favour, his suit did not suffer from the defect of partial pre-emption.
6. It was also urged by learned counsel for the appellant that the respondent was required to pay Rs.2,300 as Zar-e-Panjam (1/5th of the sale price) but he deposited Rs.2,200 only and, therefore, the plaint of his suit was liable to be rejected under subsection (4) of section 22 of the Punjab Pre- emption Act, 1913.
7. The record would reveal that objection relating to deficiency in Zar-e-Panjam was raised by the appellant before the learned trial Court by means of an application. On the other hand, the respondent submitted an application for permission to make good the deficiency. The learned trial Court allowed the application of the respondent but dismissed that of the appellant by its order, dated the 13th March, 1973. By that order, period for deposit of Zar-e-Panjam was extended and the respondent was permitted to deposit Rs. 100 within the extended period. The respondent did deposit Rs. 100 within that period. Reasons given by the learned trial Court for showing the above indulgence to the respondent find mention in following extract from its order:- "The contention of the plaintiff on the other hand is that there being two different sale-deeds regarding the house in dispute which were kept in the same envelope, clerk of plaintiff's counsel calculated the amount of Zar-e-Panjam on the basis of wrong sale-deed. The order of the Court was also misread by him. The short deposit he says is due to bona fide mistake. The mistake was not pointed out by anyone although the report is on the file of the case. He prays that time for depositing the remaining amount of Zar-e-Panjam be extended.
I have heard the arguments of learned counsel for the parties.
' The plaintiff has submitted an affidavit that short deposit was due to bona fide mistake. There is no counter-affidavit. The contention of the plaintiff appears to be correct because he has deposited Rs.2,200 within time granted by the Court. There can be no apparent reason for intentionally avoiding to deposit another Rs.100 in Court. The circumstances of the case are in favour of the plaintiff as male fides cannot be imported to him for short deposit. The case is ripe.
Parties have completed their evidence. The case was fixed for final arguments when the defendant raised this point and submitted the present application. In the interest of justice application submitted by the defendant is dismissed. Application submitted by plaintiff is granted. He is directed to deposit the remaining amount of Rs.100 in Court within seven days from today."
' The above order of the learned trial Court was challenged by the appellant by means of a revision petition but in vain.
8. As pointed out at the outset, the disputed house was sold in parts. One part of it was transferred to the appellant for Rs.11,500 while the other was sold to his wife for Rs.11,000. Separate suits were filed in regard to the two sales. Zare-e-Panjam for the suit brought against the appellant was Rs.2,300 but it was Rs.2,200 for the suit instituted against his wife. The plea of bona fide mistake raised by the respondent was, therefore, not without substance. He could not intentionally withhold the deposit of Rs.100 only after having deposited Rs.2,200. His affidavit containing explanation for shortfall in Zar-e-Panjam stands unrebutted. Deficiency in Zar-e-Panjam was also pointed out at the fag-end of the proceedings. It was not denied by learned counsel for the appellant that the learned trial Court had the power to permit the appellant to deposit Rs.100 even after the running out of the period initially fixed for deposit of Zar-e-Panjam. It was discretionary with the learned Civil Judge, who had tried the suit, to extend the said period and in the circumstances of the present case no legitimate exception can be taken to the exercise of discretion by him in favour of the respondent. I am, therefore, not inclined to reject the plaint for non-deposit of full Zar-a- Panjam within the period initially fixed for the deposit thereof.
9. Findings of the learned lower Courts on other issues were not challenged by learned counsel for the appellant.
10. Resultantly, this appeal fails. It is dismissed with costs.