' Mst. Bibi Mehr Jana alias Bibi has invoked the revisional jurisdic tion of this Court under section 115, C.P.0 (vide C.R. No. 21-D of 1983) praying for the setting aside of the judgment and decree dated 1- 12-1982 of Mr. Muhammad Qaim Jan Khan, District Judge, Bannu whereby he upheld the judgment and decree dated 30-1-1982 of S. Rafique Hussain Shah, Civil Judge, Bannu vide which the suit of the plaintiff/petitioner for a declaration to the effect that she is owner in possession of the suit land and that Mutation No. 1784 attested on 25-10-1978 is the result of fraud and ineffective upon her rights was dismissed. Through this mutatiort Mst. Bibi Mehr Jana had allegedly sold the land in suit to Sultan Muhammad Khan. The said lady has also through civil revision Petition No. 20-D of 1983 sought the indulgence of this Court by invoking its revisional jurisdiction under section 115, C.P.0 to set aside the judgment and decree dated 1-12-1982 of the learned District Judge, Bannu vide which he dismissed her appeal against the judgment and decree dated 30-1-1982 of the Civil Judge, Bannu who had granted a decree for possession through pre-emption of the suit land in favour of Muhammad Akhya plaintiff/respondent. Since both the civil revisions have arisen out of the same transaction and the facts involved in both the civil revisions being similar I would like to dispose them of both through this judgment.
2. Facts leading to the institution of declaratory suit by Mst. Bibi Mehr Jana and the pre-emption suit by Muhammad Akhya briefly may be stated as thus; vide Mutation No. 1784 Mst. Mehr Jana had sold her share in the suit 'Khata' in favour of Sultan Muhammad her husband and this mutation was attested on 25-10-1978 by the Revenue Officer Circle. Muhammad Akhya the prospective pre- emptor on 12-7-1979 instituted a suit for possession through pre-emption of the said land against vendee Sultan Muhammad Khan claiming superior right of pre-emption. During the pendency of this suit Mst. Bibi Mehr Jana on 12-7-1979 also instituted a suit for a declaration that the mutation in question was the result of fraud played upon her by her husband who taking undue advantage of her want of learning got the land transferred in his favour and that when she came to know of the fraud so played she asked her husband to get the mutation cancelled of no avail and accordingly she was constrained to institute the instant suit. Since the findings of the Court in the declaratory suit were to affect obviously the merits of the case of Muhammad Akhya, therefore, Muhammad Akhya was also impleaded as party to this suit under the orders of the Court. Sultan Muhammad Khan defendant-respondent subsequently consented to the decree to be granted in favour of Mst.
Bibi Mehr Jana plaintiff/petitioner but Muhammad Akhya contested the suit and accordingly pleading of the parties resulted in the framing of the following issues:-
(1) Whether the plaintiff has got a cause of action?
(2) Whether the plaintiff is estopped to bring the present suit?
(3) Whether the present suit is collusive and has been filed to defeat the pre-emption suit of the plaintiff which is pending in this Court?
(4) Whether the plaintiff is entitled to the declaration prayed for?
(5) Relief.
After recording the evidence of the parties as they wished to adduce the learned trial Court decided all the issues against the plaintiff and accordingly dismissed her suit. In the suit filed by Muhammad Akhya the learned trial Judge had framed the following issues:-
(1) Whether the plaintiff has got cause of action?
(2) Whether the suit is bad for non-joinder of necessary parties?
(3) Whether the plaintiff has got superior right of pre-emption qua defendant?
(4) Whether the sum of Rs. 45,000 was fixed in good faith or actually paid as sale consideration?
(5) What is the market value of the suit land?
(6) Relief.
While the suit was still in contest between the parties their pleadings obliged the trial Court to frame the following additional issues in the suit of Muhammad Akhya:-
(1) Whether the suit land has been sold by defendant No. 2 to defendant No. 1 if so with what effect?
(2) Whether the present suit is the result of collusion between the defendant No. 1 and the plaintiff against the defendant No. 2 if so with what effect?
(3) Whether the present suit is liable to be stayed till the decision of the declaratory suit lodged by the defendant No. 2 against the defendant No. 1 with regard to the impugned mutation?
' The learned trial Judge on the basis of the evidence produced pro and contra came to the conclusion that there was no fraud played upon the lady and that the transaction was a sale and the plaintiff Muhammad Akhya having proved his superior right of pre-emption his suit was decreed on payment of Rs. 1,800. Aggrieved by the conclusions arrived at in both the suits petitioner Bibi Mehr Jana went in appeals to the Court of learned District Judge, Bannu which were however dismissed and hence she has come to this Court through separate revision petitions as detailed above.
3. Arguments of the learned counsel for both the parties have been heard and record of the case thoroughly scrutinized.
4. First of all the question that falls for determination is whether sale by Mst. Bibi Mehr Jana in favour of her husband Sultan Muhammad Khan was a genuine transaction. Once it is proved that the said transaction was free from any collusion or fraud the question then arises if Muhammad Akhya has a superior right to pre-empt the same or otherwise. There can be no dispute that the powers of the High Court' to interfere with the findings of the subordinate Courts in its revisional jurisdiction are confined to ascertain whether the order of the subordinate Court is not within its jurisdiction or that it is a case in which the Court ought to exercise jurisdiction but failed to exercise such jurisdiction or, that in exercising that jurisdiction, the Court has acted illegally or in breach of some provisions of law or with material irregularity or committed some error of procedure in the course of trial which is a material one affecting the ultimate decision. In this case there is nothing to show that the two Courts below have exercised a jurisdiction which did not vest in them or that they failed to exercise the one. It is also beyond the scope of High Court in exercising the revisional jurisdiction to interfere with the concurrent conclusions given on the facts of the case. Both the Courts below are unanimous on the point that the impugned transaction was not the result of fraud but to defeat the pre-emptive rights of Muhammad Akhya, it was proclaimed that the sale transaction was the result of fraud. To substantiate her claim Mst. Bibi Mehr Jana appeared as her own witness in the trial Court and stated that her husband Sultan Muhammad Khan got her thumb-impression on a paper on the pretext that he was going to prepare her identity card and that when subsequently she came to know through her co-villagers that the land in suit had been transferred in the name of her husband the relations between the spouses became strained and therefore, she instituted a suit for declaration seeking the cancellation of the impugned mutation. It is a matter of record that she appointed ShafiAyaz brother of her husband as her attorney to pursue her suit in the Court of the Civil Judge, D.1. Khan. Once she claims that the husband had played fraud upon her it is all the more pertinent that she should have been very alert and in no case she could be expected, on one hand alleging strained relations with her husband as a result of the so-called fraud, and on the other hand she appointed the real brother of the husband to pursue her cause. She in her statement alleged that eversince the fraud was detected she left her husband who is employed in Rawalpindi and came to Bannu and put up her residence with her brother-in-law i.e brother of her husband. On the other hand as the record reveals she had requested the Court to give her long adjournments as she felt great difficulty in attending the Court frequently as she had to come from Rawalpindi. She admitted that she gave birth to a child two months prior to giving her statement i.e. 31-5-1981 and naturally the child was from her husband Sultan Muhammad Khan. If as alleged by her she left her husband after she came to know of the fraud played upon her obviously the separation occurred prior to the institution of the suit even which was so instituted on 12-7-1979 and the learned trial Judge was quite correct to hold that this allegation of the lady plaintiff could not be relied upon that she had been living away from her husband Sultan Muhammad Khan. No doubt in case of a document executed by an illiterate 'Pardanasheen' lady the burden lies on those who seek to hold the lady to the terms of her deed satisfying the Court through reliable evidence that the deed was actually executed by her with full understanding and that she had full knowledge of the nature and the effect of the transaction in which she is said to have entered but it is not a case where this principle should be stricto senso applied because in this case the person who could gain and did gain benefit was riot a stranger but her own hubsand with whom it is proved from record she is on cordial relations and even the marriage of the spouses was the result of love inter se. It is in the statement of Mst. Bibi Mehr Jana that she came to know of the alleged fraud through her co-villagers but she failed to produce any one from the entire locality to substantiate her allegation. Undoubtedly suit for possession by Muhammad Akhya was instituted on 12-7-1979 and Mst. Bibi Mehr Jana also instituted the declaratory suit on the same date. However the plaint in the case of Muhammad Akhya was drafted by the petition writer at Bannu on 10-7- 1979 while that of Mst. Bibi Mehr Jana was so drafted on 11-7-1979. This aspect of the matter also goes to suggest that the suit by Mst. Bibi Mehr Jana praying for the cancellation of the mutation was instituted with the collusion of her husband after it was ascertained that Muhammad Akhya was going to pre-empt the transaction. In these circumstances the two Courts below had quite correctly concluded that the transaction between husband and wife was not the result of coercion or any fraud. On the other hand the declaratory suit by Mst. Bibi Mehr Jana was instituted with a view to defeat the pre-emptive rights of the prospective pre-emptor.
5. Both the Courts below are in agreement that Muhammad had the superior right of pre-emption over the land in question. It is undiputed principle that the right of pre-emption is not lost if the sale is reacted after once it has been exercised. In Mian Abdul Qayyum v. Dr. Muhammad Akram Khan reported as 1982 SCM R 1024 it was held:- "Pre-emption decree not effected by anything happening subsequently--Sale pre-emptible and cause of action accruing to respondent to file pre-emption suit under section 21 of Punjab Pre- emption Act, 1913, when sale completed--Decree for declaration held, cannot bind pre-emptor, subsequent suit being a device to defeat pre-emption decree."
' In this case too even if the declaratory suit filed by Mr. Mst. Bibi Mehr Jana against Sultan Muhammad Khan is decreed in her favour, cautious of the fact that the defendant-husband had compromised, even in that case the pre-emption suit filed by Muhammad Akhya cannot be defeated because under section 17(2) any improvement otherwise than through inheritence or succession made in the status of a vendee-defendant after the institution of suit for pre-emption shall not affect the rights of the pre-emptor plaintiff in such suit.
6. On this view of the matter I am in full agreement with the concurrent findings of the two Courts below in both the suits and the two revision petitions filed by Mst. Bibi Mehr Jana meriting no considera tion are dismissed with costs.