MUHAMMAD AFZAL ZULLAH, J.--These three matters arising out of pre-emption suits involve similar questions of law and fact. They are being dealt with together. A learned Judge of the Lahore High Court rejected vendee's plea in these cases, that the doctrine of sinker would not operate against them.
2. According to the findings on facts accepted in the leave granting orders in Civil Appeal Nos. 10 and 20 of 1983 both of which arise out of one sale, involve to sets of vendees. Muhammad Anwar, Muzaffar Khan and Muhammad Asghar Khan defendants/ appellants forming one set, were found to be owners in the estate and thus having right of pre-emption equal to that of the respondents/ plaintiffs, while the other namely Mir Ahmad has been adjudged to be a tenant of 5 Marlas out of 10 Kanals and 5 Marlas of suit land. He was found to have superior right of pre-emption as tenant regarding 5 Marlas only, as compared to the respondents/ pre-emptor who claimed the right on the basis of co-ownership in the estate. Another important finding by the High Court is that all the four vendees--three co-owners in the estate and one tenant on a part of land, purchased the entire land (10 Kanals and 5 Marlas) jointly by specification of shares in land only and not by specification of share in the price. Nor there was the specification of Khasra numbers for each vendee. Thus it was a joint purchase. On these findings the learned Judge in the High Court found that Muhammad Anwar, Muzaffar and Muhammad Asghar lost the right to defend the sale on basis of equal right of co-ownership in estate, because they joined in the joint purchase a stranger qua them namely Mir Ahmad as he was not a co-owner. Similarly Mir Ahmad lost the right to defend because he though being a tenant on 5 Marlas out of 10 Kanals and 5 Marlas of land, joined with him in indivisible purchase, the other three who were strangers regarding the right of pre- emption on the basis of tenancy. Thus the principle of sinker has been applied against all the vendees.
Leave was granted in this matter to examine the plea that "on the basis of protection so available (to Mir Ahmad regarding 5 Marlas under his tenancy), the entire sale could be protected by the petitioners (vendees) on the ground of co-ownership and contiguity and the principle of sinker was as such not available. Learned counsel for the appellants in Civil Appeal No. 20 of 1983 has during the arguments also added that even if the principle of sinker is applicable when taking the cases of to sets of vendees separately it would not apply if they are considered together; because each of them can protect the respective purchase on the basis of independent right--one of co-ownership in the estate and the other being a tenant and that this would be so notwithstanding the jointness of the purchase. The respondents' case in reply is based mainly on to judgments of this Court: Ahmad Khan v. Sattar Din PLD 1981 SC 148 and Akram v. Sakina Begum and another PLD 1984 SC 334.
3.In Civil Petition 338-R of 1984 the petitioners/ vendees jointly purchased 183 Kanals and 17 Marlas of land comprised of 30 survey numbers. They claimed to be tenants of the land but it has been held that all of them are not tenants on all the survey numbers. As stated in the petition, S. Nos. 1, 2, 3, 23, 28 and 213 are under the tenancy of Karim Bakhsh petitioner alone while S. Nos. 4, 5, 9, 10, 30, 208 and 212 are under joint tenancy of petitioners Nos. 1, 2 and 3 (Muhammad Siddique, Muhammad Nazir and Ghulam Rasool).. The doctrine of sinker has been applied in this case also because those who are tenants on some of the total survey numbers have, in the joint indivisible purchase, joined with them strangers, who are not tenants. And they have no other qualification to protect the sale. The ground raised in support of this petition by the learned counsel are similar to the ground on which leave to appeal has been granted in the other case. They are as follows: "(a) Under the Pre-emption Act, a vendee is entitled to improve his status right upto the institution of the suit against him. If he does make an improvement so as to come to the level of the plaintiff-- -s qualifications, the plaintiff gets non-suited.
(b) It is true that the petitioners purchased the land jointly and no survey number was in their joint tenancy. For instance Khasra numbers 1, 2, 3, 23, 28 and 213 were in the tenancy of Karim Bakhsh petitioner alone whereas survey numbers 4, 5, 9, 10, 30, 208 and 212 were in the tenancy of petitioners 1, 2 and 3 only. Thus to the extent of the each vendee's purchased share in the survey number of which he was a tenant on the date of the sale, he became an owner and hence an owner in the village. Since the pre-emptor claims the property only on the basis of being an owner in the village, and the petitioners having also become owners in the village by dint of this sale (and further having even become co-sharers in all the said survey numbers) the respondent had no superior right of prior purchase as against the petitioners."
4. It needs to be observed that another ground taken in the petition with regard to the nature of purchase, joint or otherwise, was neither pressed during the arguments nor we deem it worth consideration, because of sound findings by the learned Courts below, in this behalf. Learned counsel for the petitioner however strenuously argued that the principle of sinker is not applicable and that the to judgments of this Court noticed above though prima facie may be against the petitioner but as urged, they are distinguishable.
5. The common questions involved in three matters were noticed during the hearing of Civil Petition No. 338-R of 1984. It was, therefore, directed that all the three matters should be fixed together for further hearing. All the matters having accordingly been fixed for hearing we heard the arguments addressed by the learned counsel for the petitioners/appellants in Civil Petition No. 338 of 1984 and Civil Appeal No. 20 of 1983 and the learned counsel for respondents in Civil Appeal No. 10 of 1983.
We regret to notice that despite the request and direction having gone to both the learned counsel for the appellant in Civil Appeal No. 10 of 1983 none appeared at the the of arguments. May be the the was to short according to them for preparation but leave to appeal having been granted in the case in March, 1983 the counsel should have been ready with the arguments as and when called upon to address the same.
Nevertheless all the learned counsel on our direction having submitted concise statements in these cases. The learned counsel in Civil Appeal No. 10 and Civil Petition No. 338 of 1984 have cited considerable case law on various angles of the difficult question of "sinker" and the other question raised before us.
6. Prima facie the judgment of this Court in the case of Akram PLD 1984 SC 334, would be distinguishable but in so far as the case of Ahmad Khan, PLD 1981 SC 148, is concerned it seems to be fully attracted. However the point made by the learned counsel for the petitioner in Civil Petition No. 338 of 1984 in his written submissions for distinguishing this case might require further examination. We accordingly grant leave to appeal in Civil Petition No. 338 of 1984 in the to questions quoted above. Security Rs.2,500.
7. Appeal to be made ready on the present record with liberty to parties to file additional documents if necessary.
8. The learned counsel for appellants in Civil Appeal No. 20 of 1983 has during the oral arguments as also in his written submissions tried to show that Mir Ahmad (appellant in Civil Appeal 10 of 1983) having been found as tenant on 5 Marlas out of more than 2 Kanals of his share of purchased land, he would be able to protect the sale qua him and, Muhammad Anwar, Muzaffar Khan and Muhammad Asghar would be able to protect the sale qua them on ground of co-ownership. Thus Mir Ahmad vendee on the basis of superior right than the pre-emptor and the others on the basis of equal right qua the pre-emptor would be able to protect the entire sale, none of the to sets of vendees having thus joined a stranger in the transaction. On face the argument looks attractive but on proper analysis it is likely to fail because Mir Ahmad is not a tenant of the entire share of land in his purchase. Regarding his share beyond 5 Marlas he has no right of pre-emption.
Muhammad Anwar etc. Having joined him in the common transaction to the extent of a part thereof would be deemed to have joined with them a stranger. The principle of "sinker" would, therefore, apply to them the sale being indivisible.
9. Argument has been advanced on behalf of Mir Ahmad vendee that in any case he would be entitled to protect 5 Marlas on which he has right of tenancy. But that to would prima facie be not possible because it has been held to be indivisible from the remaining part of the transaction.
10. The learned counsel for Mir Ahmad has however submitted elaborate argument regarding principles underlying the question of "sinker" in so far as it applies to vendees. He has pointed out, with respect, that the decision of this Court in Civil Petition No. 505/11 of 1983 (Fazal Elahi v. Diwan Ali (deceased) represented by his L.Rs. Mst. Ghulam Bai, etc.) decided on 6th February, 1984 in so far as it assumes that the principle of sinker vis-a-vis vendees is not applicable in Punjab might need review for which a separate Civil Review Petition No. 16-R of 1984 in Civil Petition No. 505-R of 1983 has already been filed. He has in this behalf relied upon some cases arising from Lahore jurisdiction. We may add that Mehr Allah Ditta and another v. Muhammad Ali and another PLD 1972 SC 59 and Muhammad Siddique and another v. Syed Zawwar Hussain Abidi and 9 others PLD 1976 SC 572, might also be relevant for consideration in this behalf.
11. There is yet another matter which is pending consideration namely Muhammad Iqbal v. Fazal Elahi and others Civil Petition No. 507-R of 1983. It has been filed by a party opposite to the petitioner in Civil Review Petition No. 16-R of 1984 in Civil Petition 505-R of 1983. It has been ordered by the Court that the said petition namely 507-R of 1983 and the Civil Review Petition No. 16-R of 1984 should be heard together. They are still pending.
12. After careful consideration of all the submissions made orally as also in writing we deem it proper to direct that these three matters be fixed for further hearing alongwith Civil Review Petition No. 16-R of 1984 and Civil Petition No. 507-R of 1983. The counsel in those to matters incidentally are also the counsel in these three matters, therefore, it should not take long for the office to fix all these matters for hearing within a short the. In order to avoid any technical difficulty notice to the respondents in Civil Petition No. 507-R of 1983 shall also be issued for a short date.
13. These cases should also be submitted to the Hon---ble learned Chief Justice for a direction, if so approved, that they may be heard by a larger Bench preferably of five Judges as there is a possibility of re-consideration of a previously laid rule.
14. There shall be no order as to costs relating to the past hearing.