' Briefly stated the facts necessary for the disposal of this revision petition are that land measuring 59 Kanals 8 Marlas in dispute which is fully described in the plaint was sold by Sardar Khan for Rs.30,000 vide registered sale-deed dated 22-5-1979 to Muhammad Ashraf and Munawar Hussain respondents Nos.12 and 13. These vendees agreed to sell vide agreement to sell dated 14-2-1980 land measuring 58 Kanals 1 Marla out of the disputed land to Khurshid Alam, Muhammad Zarif and Zafrullah, the present petitioners. The sale-deed was then executed and registered in favour of the petitioners on 31-3-1980. The land in dispute was sought to be pre-empted by Farzand Ali predecessor-in interest of respondents Nos.1 to 9 alongwith respondents 10 and 11 by filing a suit for possession through pre-emption on 31-3-1980. The subsequent vendees were also later on, impleaded as defendants in the suit. It may be stated here that the subsequent sale was for a considera tion of rupees one lac and that this sale was within one year of the first sale. The plaintiffs-respondents asserted in the plaint that they possessed superior right of pre-emption as against all the defendants. In reply the case of Muhammad Ashraf and Munawar Hussain was that they had sold the land in favour of the petitioners within one year of the sale in recognition of superior right of pre-emption of the petitioners and as the right of the petitioners was not inferior to the claimed superior right of the plaintiffs-respondents the suit was liable to be dismissed. They also raised certain other objections but as those are not relevant for the purpose of this revision petition the same need not be enumerated here. The learned trial Court after framing the issues and recording evidence of the parties decreed the suit vide judgment and decree dated 30-6- 1983. This led to the filing of an appeal wherein findings of the learned trial Court on issues Nos.2 and 5 were only contested. These issues read as under:-
(2) Whether the defendants have effected improvements, if so when and to what extent and its effect? O.P.D.
(5) Whether the plaintiff have better right of pre-emption as against the defendants? O.P.P.
' The finding recorded by the learned trial Court was that Khurshid Alam and Muhammad Zarif subsequent vendees were though owners in the village but as they had joined Zafrullah in the purchase who was not owner in the village they also lost their right on the basis of principle of sinker. This first purchasers Muhammad Ashraf and Munawar Hussain had retained with them 1 Kenal 7 Marlas of the land in dispute and they being admittedly not owners in the village cannot also resist the suit of the pre-emptors-respondents. It may be mentioned here that Zafrullah petitioner has claimed ownership in the village on the basis of the land situated in the same village which was gifted to him vide registered gift deed dated 4-11-1978 (Exh. D. 6). The learned trial Court ignored this gift deed by saying that gift deed Exh. D.6 could be relied upon if the possession of the land had passed to the donee under the gift deed and as no evidence has been brought in respect of the delivery of possession the said gift could not be relied upon for claiming ownership in the village. The learned trial Court also expressed doubt about the authenticity of the gift purportedly made under Ex.D.6. The view which prevailed with the learned appellate Court in respect of these issues was that the objection as to non-delivery of possession can be taken either by the donor himself or by his heirs and in a case where the donor himself is supporting the gift no effect can be given to an objection by a third party who is in possession and claims adversely to both the donor and the donee. In support of this view Fazal Ahmad v. Mst. Rakhi PLD 1958 Lah.218 was referred to.
The learned appellate Court further observed that in the present case there was no evidence that Nawab the donor had objected to the gift on the ground that the possession was not delivered and hence the plaintiffs-respondents could not have raised the objection that the gift was incomplete because the possession was not delivered to Zafrullah. The learned appellate Court has, therefore, recorded contrary view on this question and has held that Zafrullah was owner in the village and his status was at par with the plaintiffs-respondents. Despite coming to this conclusion the appeal of the petitioners was dismissed by applying principle of sinker. In this respect the learned appellate Court noted that 1 Kanal 7 Marlas out of the land in dispute was retained by Muhammad Ashraf and Munawar Hussain the original purchasers who admittedly did not possess any right of pre-emption as they were strangers in the village. It was also noted by the learned appellate Court that though there are two sets of vendees yet the petitioners by joining themselves through purchase with Muhammad Ashraf and Munawar Hussain respondents have lost their right also because Muhammad Ashraf and Munawar Hussain respondents did not possess any such right of pre-emption and to such a joining the doctrines of partial pre-emption as well as sinker apply. It was, therefore, held that the subsequent vendees cannot resist claim of the pre-emptors even in respect of their own share of the purchase and the subsequent vendees would be deemed to have sunk down to the level of their associates. The appeal was, therefore, dismissed vide judgment and decree dated 24-6-1984. The petitioners (subsequent vendees) thereafter filed the present revision petition.
2. I have heard learned counsel for the parties and have gone through the record. Learned counsel for the petitioners argued that the learned appellate Court has erred in law in holding that the two sales i.e. first sale dated 22-5-1979 in favour of Muhammad Ashraf and Munawar Hussain respondents by Sardar Khan and the second sale by Muhammad Ashraf and Munawar Hussain respondents to the petitioners was one sale and that by no stretch of imagination by purchasing the property the petitioners could be held to have joined Muhammad Ashraf and Munawar Hussain respondents so as to apply the principle of partial pre-emption or sinker. It was argued that the petitioners were sold the land in recognition of their superior right of pre-emption and no compulsion exists in law for them to purchase the entire land which was purchased earlier by Muhammad Ashraf and Munawar Hussain respondents, and that neither the doctrine of partial pre-emption nor the principle of sinker applies in the circumstances. In reply learned counsel for the respondents argued that the principles of sinker and partial pre-emption were rightly applied by both the learned Courts below as the petitioners fraudulently obtained the land from Muhammad Ashraf and Munawar Hussain respondents who admittedly do not possess any right of pre-emption. It was argued that in any case Khurshid Alam and Muhammad Zarif petitioners have joined themselves with Zafrullah a stranger in the village and as such they having joined even in the subsequent sale a stranger cannot resist the claim of the pre-emptors in respect of their own share of the purchase and that the subsequant vendees, i.e. the petitioners would be deemed to have sunk down to the level of their associates in view of the principle of sinker. This plea was based on the premises that the gift deed cannot be relied upon as the gift was incomplete on account of non-delivery of possession and that the finding recorded by the learned appellate Court is erroneous and is contrary to record. Learned counsel in order to press the principles of partial pre-emption and sinker relied on Mst.Fateh Bibi v. Ahmad Khan and 6 others PLD 1971 Lah.171 and Murid Hussain and another v. Muhammad Shafi and another 1980 CLC 1753. In respect of the view of the learned appellate Court that the objection regarding non-delivery of possession cannot be raised by third party, reference was made to Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140 and Muhammad Ashraf and another v. Muhammad Khan and others 1980 CLC 2068. In the Supreme Court case while narrating the factual background of litigation it was noted that two of the defendants claimed that they were Khewat-holder in the village on the basis of gift said to have been made in their favour by one Muhammad Khan. The mutation was sanctioned on 20th November 1952 on the basis of report dated 1st of September 1952 but the trial Court held that as this gift had not been completed by delivery of possession before the institution of the suit out of which the appeals arose they were not Khewat owners in the village. Learned counsel referring to the aforenoted factual narration submitted that in this precedent the plea of ineffectiveness of the gift on account of non delivery of possession was not only gone into but also appears to have been upheld and as such in pre-emption cases the principle that the third party cannot raise objection against a gift on account of alleged non-delivery of possession does not apply. In the other case of Muhammad Ashraf (Azad J & K High Court) gift set up so as to defeat the right of pre-emption was not accepted by observing "that a meagre amount of gift from quite a large number of fields the possession of which could not be handed over to the donees shows that it was simply made to defraud the pre-emptors so as to defeat them in the exercise of their right of prior purchase and thus gift having not termed as a complete gift and as such being void the status of the vendees could not be improved as contended." From this observation it is apparent that in these two cases the gifts set up by the vendees were held to be ineffective so as to defeat the right of pre-emption of the pre-emptors and the pre-emptors were not non-suited by applying the principle that third party cannot raise the plea of incompleteness of the gift on account of non-delivery of possession. In this view of the matter the foremost thing that requires determination in this case is whether gift set up by Zafrullah was fictitious or was void in view of alleged non delivery of possession.
3. I have given serious consideration to this aspect of the matter and have also gone through the evidence on record with the assistance of the learned counsel for the parties. Before proceeding further it is pertinent to note that in the pleadings challenge was not made to this gift and no specific issue was, therefore, framed in this respect. Learned trial Court as noted in paras. above observed that evidence was not produced to prove delivery of possession by Zafrullah petitioner and that the gift deed cannot be relied upon as the gift was not given effect to in the revenue record till 22-5-1980, when mutation was entered during the pendency of the suit. The gift was made through registered deed and the donor has not objected to the gift on any account till date.
In these circumstances the onus lay heavily on the plaintiffs/respondents to establish that the gift deed wherein the delivery of possession stands admitted was a sham or fraudulent document brought into existence to defraud the pre-emptors. It is also to be noted that Muhammad Shah Nawaz one of the pre-emptors appearing as P.W.3 deposed that he was not aware of any Khasra number of Square No. 22 over which Zafrullah had the possession. It was also suggested to him that on 10 Marlas of Killa No. 11 and 2 Kanals of Killa No. 12 of Square No. 22 the possession was that of Zafrullah. He also deposed that he is not aware as to who is in possession of the said Killa numbers. He was not aware if the possession was that of Nawab son of Aziz the donor. The learned trial Court has referred to the statement of Abdul Sattar Patwari (P.W.1) for arriving at the conclusion that possession of the gifted land appears not to have been given to Zafrullah. The statement of Abdul Sattar Patwari was recorded twice, once as P.W.1 again as D.W.1. As P.W. he deposed that on 31-3-1980 the petitioners purchased the land from Muhammad Ashraf and Munawar Hussain for a sum of rupees one lac and that Zafrullah prior to it was owner of horse- breeding square in the capacity of Sarbrah and that Zafrullah petitioner on 22-5-1979 was not owner in the village. Abdul Sattar Patwari appearing as D.W.1 deposed that Zafrullah became owner in the village on the basis of registered gift deed dated 14-11-1978 in respect of which Mutation No. 194 was attested on 14-5-1980. In the cross-examination he explained that he had record with him when he made the previous statement and that Mutation No. 194 was entered on 12-5-1980 and was attested on 14-5-1980 on the basis of the gift deed dated 4-11-1978. He further deposed that prior to this mutation there is no entry respecting ownership of Zafrullah in the revenue record. It will, therefore, be seen that Patwari was not asked about the alleged fictitious nature of the gift or in respect of the physical possession over the gifted land. Zafrullah appearing as D.W.2 deposed that he was owner in the village prior to the sale in question on the basis of the land obtained from Nawab and that he had got the gift deed registered. He in the later part of the statement referred to this gift as a purchase. He also denied the suggestion that he had got the land transferred in his name as a safeguard against the pre-emption suit.
' He further deposed that he had been cultivating the land in question. In view of this state of evidence it cannot be said that the respondents-plaintiffs were successful in establishing the allegation that the gift deed was a fictitious document or that the gift was void on account of non- delivery of possession. It may be added that even while attackin B a gift collaterally cogent and made reliable evidence has to be made available on record, as otherwise a gift which is not objected to by th donor or his heirs cannot be held ineffective and cannot be declared void. It is also pertinent to note that the gift deed is a registered document and it cannot be said that the gift deed was not executed or registered on the dates appearing in the deed itself. On the basis of the evidence on record it cannot be held that it was a fictitious document merely because it was not given effect to in the revenue record. It is common for some of the parties not to have their documents evidencing their transactions entered in the revenue record so as to ward off possible attacks from rivals. The device of purchasing small piece of land by giving the transaction colour of gift is very common in cases where such a party intends to purchase land at some later point of time. This device is adopted to defeat a claim of pre-emption as against any subsequent transaction. This device so adopted to defeat claim of pre-emption cannot be objected to on legal plane. This appears to be the modus operandi of Zafrullah. On account of this it appears that he in his later part of statement referred to Hiba as a purchase. From this it cannot be inferred that he had not obtained the land from Nawab in the year 1978 and had not become owner in the village. I would, therefore, hold that Zafrullah was owner in the village and as such possessed equal right of pre-emption and by joining Zafrullah the other two petitioners had not lost their own right of pre- emption which, admittedly, they possessed. The doctrine of sinker as such does not apply to the petitioners. The only question now to be considered is whether the two sales can be considered as one sale and whether by purchasing the land measuring 58 Kanals 1 Marla by the petitioners they can be said to have joined with Muhammad Ashraf and Munawar Hussain respondents, the strangers in the first purchase so as to apply the rule of partial pre-emption or sinker. It may be clarified that the parties are not disputing the meaning and the scope of principle of partial pre- emption or sinker. The dispute is with regard to the application of these principles on the facts and circumstances of the instant case. The rule laid down in the precedents noted above is thus not in dispute. It is also not disputed that the rule of lis pendense applies to the pre-emption suits but it does not affect the validity of the sale effected by the vendees before the institution of the suit to a F person possessing a right of pre-emption equal to that of a pre-emptor, for the reason that such a sale does not really offend the true rule of lis pendense. It is also well settled that a vendee having equal right of pre-emption associating with himself in purchase another person having right inferior to that of pre-emptor is not entitled to resist claim of pre-emption even in respect of his own share of purchase. In the instant case the plea of the respondents-plaintiffs is that the petitioners had not purchased the entire land subject-matter of the suit and as the original/first vendees had retained with them a part of the land both the sets of vendees are to be treated as joint purchasers of the land in dispute and as one sets of vendees, admittedly, are strangers in the village, the rule of sinker applies and that the subsequent vendees whq though possess equal rights cannot successfully resist claim of the pre-emptors in respect of their own share of purchase. In support of this argument it was argued that had the petitioners the subsequent vendees, claimed the land in recognition of their superior right of pre-emption through a suit of pre-emption they could not have chosen to claim a part of the land in question and the first vendees could not have retained any part of the land in dispute. According to the learned counsel for the respondents-plaintiffs no difference is to be made in case of a person purchasing the land without intervention of the Court as the land is being surrendered to him in recognition of superior pre-emptive right. No principle of law or precedent was, however, cited by the learned counsel in favour or against the proposition noted above.
4. I have given serious consideration to the aforenoted pleas but I find that sale of the land made voluntarily by the parties cannot be equated with the right of pre-emption sought to be enforced through agency of a Court of law. It will be seen that a right of pre-emption is not a right in property (jus in re aliena) but is a right to acquire property in preference to other persons in certain defined circumstances. It is erroneous to describe the right of pre-emption as a right of "forbidding an alienation". Its very name shows that this is not its true nature and it is obvious that when a sale takes place those favoured individuals who have the right of substituting themselves, if they so think fit, for the vendees, have no right to forbid the sale. All that they can claim is that if the sale is in favour of a person who is not one of the favoured classes the Court shall delete the names of the vendees and substitute their own names in their place. The right of contract vesting under the general law of the land has thus not been curbed in any way. The Pre-emption Act merely recognises the right of substitution. The law also recognises the right of a vendee to surrender the land to another person in recognition of right of pre emption superior to his own. Thus, right available under the law ofH contract is not circumscribed in the case of voluntary contracts though for exercise and enforcement of right of pre-emption through a Court of law certain defined circumstances and classes of persons have been provided for. These limitations or qualifications are as such applicable to the exercise of right of pre-emption through a Court of law and by no stretch of imagination these can be extended to voluntary contracts. It was, therefore, not compulsory for the petitioners to purchase the entire land from Ashraf and Munawar respondents, the original vendees. The principle of partial pre-emption as such in my considered view does not apply in the circumstances of this case. The two sales cannot be considered as one sale and on no discernible principle the two sales can be considered as a joint sale or that the subsequent vendees cannot be considered to have joined original vendee so as to apply the principle of sinker.
These are two sales and the pre-emptors have to establish their preferential right of pre-emption as against both the sets of vendees. The pre-emptors cannot succeed as against the petitioners in respect of the land purchased by them as admittedly the pre-emptors/plaintiffs had equal right of pre-emption and not the superior against the petitioners. The suit, as such, was bound to fail as against the petitioners.
5. The net result of the above discussion is that the revision petition is accepted, the impugned judgments and decrees of both the learned Courts below are set aside as against the petitioners and the suit of the pre-emptors/respondents so far as it relates to the petitioners, is dismissed.
' As regards Muhammad Ashraf and Munawwar Hussain, respondents, they cannot resist the suit of the pre-emptors who admittedly possess superior right of pre-emption as against them. The pre- emptors are, therefore, entitled to pre-empt 1 Kanal 7 Marlas of the land out of the disputed land retained by these respondents (Nos. 12 and 13). The suit of the pre-emptors/respondents is, therefore, decreed to that extent only on the payment of proportionate price amounting to Rs.
682. This sum, if already has not been deposited or the balance after deducting Zar-i-Panjam already deposited, if any shall be deposited within one month from today. In case the amount is not deposited, the suit shall stand dismissed in toto.
' The parties are, however, left to bear their own costs.