' Noor Din alienated the suit land out of Survey Nos. 2787, 2644 and 2646, situate in village Kalachh, Tehsil Bhimber, in favour of Eid Ali and Muhammad Ramzan, defendant-appellants, through a registered sale-deed, on 8th March, 1978, in the sum of Rs. 12,000. Hoshnak and Inayat Ali, jointly pre-empted the sale on account of their relationship with the vendor and as co-sharers in the suit land. The suit was dismissed by the trial Court for want of proof. On appeal, the learned District Judge, however, recorded his disagreement with the trial Court and decreed the suit in favour of Hoshnak.
2. Mr. M.S. Tariq, the learned counsel for the appellants, contended that Hoshnak, plaintiff, even if accepted to have prior right of purchase, lost such right as he joined with him Inayat Ali, having no better status than the vendees. It was emphasized that the rule of sinker was applicable to the case of Hoshnak, as such he was not eligible to a decree for the suit land.
3. The object of rule of pre-emption, as envisaged from the scheme of law, is to maintain homogeneity, integrity and consolidation of village community as well as urban society. The purpose of harmony in the class of society, listed in the statute, is achieved by exercise of statutory right of pre-emption. The right of pre-emption attained importance in Islamic jurisprudence in a peculiar limited class of cases. In the sub-continent, on the other hand, the right was introduced by virtue of custom which subsequently assumed statutory shape. It is for this reason that the learned Judges of Allahabad and Oudh High Courts, construed the provisions of law of pre-emption by following the rules of Islamic law of pre-emption, whereas the Chief Court of Punjab and presently the High Court of Punjab and Supreme Court of Pakistan strictly adhered to the statutory spirit of the law of pre-emption. The rule of sinker was expounded on the premises that a person vested with a right of pre-emption, when joined a stranger in the purchase of property subject to pre- emption, and thereby violated the principle of pre-emption, was deprived of his personal right of pre-emption in defence of a suit preferred by another pre-emptor, having equal status with him. In other words, a person vested with a right of pre-emption, in derogation to the spirit of law, when introduced a stranger with him, in the purchase of the property, subject to pre-emption, was estopped to assert his such right in defence against the pre-emptor who preferred his right of pre- emption, to substitute himself for the position of a stranger and the vendee-pre-emptor, to vindicate the principle of pre-emption. For it was observed that a person vested with a right of pre- emption, by joining a stranger, sunk his such status into the position of a stranger and thereby was deprived of the status 'of a pre-emptor. According to the Allahabad view, on the analogy of a pre- emptor-purchaser alongwith a stranger, a plaintiff-pre-emptor joining with him a stranger as co- plaintiff, was equally estopped in equity from asserting his superior right against the vendees, having no right of pre-emption. It was construed that a pre-emptor-plaintiff, by joining a stranger as co-plaintiff, tantamounts to have acquiesced in equity. The Lahore High Court and the Supreme Court of Pakistan, nevertheless, distinguished the position of a plaintiff-pre-emptor joining with him a stranger as co-plaintiff, from the position of a pre-emptor-vendee, joining a stranger in the transaction of sale of the property, subject to pre-emption. The distinction was made in the manner that a vendee-pre-emptor, by joining a stranger in the transaction of sale, subse quently, was Unable to do away with the transaction of sale, whereas in the case of plaintiff-pre-emptor, joining a stranger as co-plaintiff, the error was likely to be rectified by striking out the stranger co- plaintiff from the plaint or withdrawal of such plaintiff from the proceedings as the same was permissible under Order I rule 10(2), C.P.C. The view finds support from Sharaf's case 83 P R 1893 followed by Raja's case PLD 1957 Lah. 52 and those of Mehr Allah Ditta PLD 1972 SC 59, Muhammad Ashraf Khan PLD 1983 SC (AJK) 181 and Haji Muhammad Yusuf PLD 1983 SC (AJK) 188.
4. In the instant case, the position of Hoshnak, plaintiff-pre-emptor, is quite distinct and on better footing. It is correct that initially Hoshnak and Inayat Ali jointly pre-empted the alienation of the suit land and averred that they were vested with prior right of purchase, by virtue of their relationship with the vendor and being co-sharers in the suit land. Nevertheless, on 5th October, 1980, before framing of issues, Inayat Ali, co-plaintiff, who, according to the vendee-appellants, enjoyed no right of prior purchase, moved pn application for permission to withdraw from the suit. On recording the statement of the counsel representing Inayat Ali in support of the application, the trial Court permitted him to withdraw from the suit and struck out his name from the plaint. Thus, Inayat Ali, co-plaintiff, even if admitted to have no better status to pre-empt the sale, was removed from the list of the plaintiffs and Hoshnak alone was left to pursue the suit throughout. The factual aspect of the case, therefore, leads to the inference that Hoshnak alone pre-empted the sale and pursued the proceedings till its conclusion. It is on record that the order of the trial Court, for depositing of one-fifth probable value of the land or to furnish security equal to the price of the land, was also complied with by Hoshnak alone. The conduct of the plaintiff, subsequent to the striking out the name of Inayat Ali, plaintiff, is a proof of the fact that Hoshnak pursued the proceedings in support of his independent right of pre-emption. Institution of suit by Hoshnak by joining Inayat All as co- plaintiff, even if accepted as an error or mistake at the initial stage, was subsequently rectified by widhdrawal of Inayat Ali from the proceedings and striking out his name from the plaint.
5. It is undeniable that persons vested with a right of prior purchase, are allowed to exercise their right by institution of a suit jointly or serverally. Section 12 of the Right of Prior Purchase Act, postulates that whenever a right of prior purchase vests in several persons, the right may be exercised by all such persons jointly or serverally. Order I, rule 1 of the Code, on the other hand, equally provided that all persons may join in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act, or transaction or series of acts or transactions, is alleged to exist. The provisions of section 12 of the Act and those of rule 1 of Order I of the Code, therefore, make it permissible for bringing the suit jointly, to exercise the right of prior purchase, arising out of an act or transaction of sale of the property subject to pre-emption. The institution of a suit by more than one plaintiff therefore, was not prohibited in law. However, persons claiming right of prior purchase were left with a choice to sue jointly or separately. In the case of a suit instituted by more than one pre-emptor, on the conclusion of the trial, if one of such plaintiffs, successfully proved the alleged right and co-plaintiff failed to do so, the failure of co-plaintiff by itself was not sufficient to defeat the right of successful pre-emptor. This view finds support from Muhammad Wajid Ali's case AIR 1929 P C 58 wherein it was held that when several co-sharers desire to exercise the right of pre-emption and there are differences between them as to their shares or priorities, they may join as plaintiffs in a suit for pre-emption against the stranger-purchaser and may obtain in that suit a decision, not only as to their right to pre-empt but also as to their rival claims and a decree, as provided under Order XX, rule 14 of the Code, in accordance with which, each plaintiff was entitled, in default of the others, to pre-empt alone. The relevant observation is reproduced below:- "Where the custom of pre-emption obtains in a village, every co-sharer has a right to pre-empt a stranger purchasing land in the village. When several co-sharers desire to exercise this right, and there are differences between them as to their shares or priorities, they may join as plaintiffs in a suit for pre-emption against the stranger-purchaser, and may obtain in that suit a decision, not only as to their right to pre-empt, but also as to their rival claims and a decree, as provided in 0. XX, Civil P.C., in accordance with which each pre-empting plaintiff will be entitled, in default of the others, to pre-empt alone. On the other hand, two or more co-sharers may simply sue the stranger-purchaser for pre-emption, as in the present case, without asking the Court to adjudicate on their rival claims and may obtain a decree for possession on depositing the pre-emption money in Court. In their Lordships' opinion the effect of that decree is to establish, as against the defendant, the right of each of the plaintiff-co-sharars to pre-empt him and to entitle them to posses sion on depositing the pre-emption money, leaving to adjust their shares and priorities among themselves, these being matters in which the defendant has no concern so long as the pre-emption money is secured to him."
6. The next objection raised by the learned counsel for the appellants, is that as the suit was instituted by two plaintiffs, on withdrawal of Inayat Ali, in absence of amendment in the plaint to sue for the entire property,. Hoshnak, respondent was entitled to decree for one-half of the property. In my well-considered view, the objection is not sustainable. A perusal of the pleadings reflects that Hoshnak and Inayat Ali jointly pre-empted the sale. Both the plaintiffs averred that they enjoyed prior right of purchase in the suit land, as such were entitled to decree for possession of the land. It is clear from the pleadings that the plaintiffs have not alleged their prior right of purchase for specific share in the suit land. Unless the plaintiffs in their pleadings alleged their specific shares in the suit land or asked for specific relief in their favour, the objection cannot be entertained to hold that, on disappearance of Inayat All from the scene, Hoshnak who was left alone in the field, could not claim decree for the entire land, in absence D of amendment in the pleadings. It is already noticed that more than one persons vested with right of prior purchase, could pre-empt the sale jointly and only those who established their prior right of purchase, were entitled to decree. In other words, if more than one persons jointly pre-empted the sale and only one of them proved his prior right of purchase and others failed, failure of the co-plaintiffs to prove their right of prior purchase by itself was not enough to deprive the successful pre-emptor of a decree for the entire suit land. It may be remarked that the objection in question is to be resolved on perusal of the pleadings as a whole. Therefore, in the case of joint or collective pre-emption, when co-plaintiffs withdrew from the contest or for any reason listed in Order I, rule 10(2), C.P.C., at their request or suo motu, the Court decided to strike out their names from the plaint, no formal amendment in the pleadings of the contesting plaintiff, was necessary.
7. The next objection is ancillary to the foregoing objection as, according to Mr. Tariq, on holding Hoshnak entitled to decree for half of the property, the suit was hit by the rule of partial pre- emption. The contention is devoid of force. It is already held that Hoshnak, who joined Inayat Ali as co-plaintiff at the initial stage, subequently, on striking out the name of Inayat Ali from the plaint, alone pre-empted E the sale in question. It is equally held that on withdrawal of Inayat from proceedings, Hoshnak, pre-emptor, could successfully continue the suit without even making formal amendment in his pleadings. On this premises, there is no reason to hold that the suit was hit by the principle of partial pre-emption.
The learned counsel for the appellant was unable to satisfy that, at any stage, plaintiff-pre-emptor opted to pick and choose in the property under sale or left out any part of it. In the circumstances, it is unreasonable to press that the suit is hit by the mischief of partial pre-emption.
8. On merits, it was argued that the learned District Judge misconceived and misconstrued the evidence by accepting close relationship of Hoshnak with Noor Din, vendor. It was argued that the oral evidence of plaintiff was not satisfactory to accept the alleged relationship of plaintiff with the vendor. It is undeniable that the parties were occupancy tenants in the village. The pedigree table of the occupancy tenants is not maintained in the record of rights. In the circumstances, both the parties were unable to adduce documentary evidence in support of their respective claims.
Hoshnak, plaintiff produced Sohbat All aged 100 years and Baddar Din, aged 80 years. Sohbat Ali and Baddar Din are brothers and cousins of Hoshnak. Hoshnak is also 80/85 years old. The vendees are the real nephews of Sohbat Ali and Saddar Din. Sohbat Ali and Baddar Din described the details of pedigree table of the parties and deposed that Diyanat was the common ancestor of Noor Din, vendor and Hoshnak, pre-emptor. According to the testimony of Sohbat Ali, Baddar Din and Hoshnak. Diyanat, the common ancestor of the parties, was survived by Faiz Muhammad and Murad Bakhsh. Noor Din, vendor was the son of Jana and Jana was the son of Faiz Muhammad. On the other hand, Hoshnak was the son of Wali Muhammad and Wali Muhammad was the son of Fazal who was the sun of Murad Bakhsh. Wali Muhammad father of Hoshnak had two other brothers, namely, Sakhi Muhammad, father of Sohbat Ali and Baddar Din, P.Ws. and Ghulam Muhammad. Eid Ali and Muhammad Ramzan are the sons of Muhammad Ibrahim, the brother of Sohbat Ali and Baddar Din. The difference between the evidence of pre-emptor and the vendees is that Sahbat Ali, Baddar Din and Hoshnak, appearing in support of the claim of the pre-emptor, explicitly described the details of the ancestors of the parties and disclosed the name of common ancestor as well. On the other hand, the counter-evidence led by the vendees accepted the line of ancestors of Hoshnak and Noor Din upto Murad Bakhsh and Faiz Muhammad but expressed their ignorance about Diyanat, the common ancestor of the parties. Lack of knowledge of defence witnesses or denial of a particular fact was not enough to repudiate the title of the pre-emptor, otherwise successfully established by positive evidence.
9. It is noticed that Sohbat Ali and Baddar Din were related to the pre-emptor but they were more closely related to the vendees. They were cross-examined at length but the defendants were unable to dig out anything out of their cross-examination, adverse to the claim of the pre-emptor.
Contrarily, the evidence led by the defedants supported the case of the pre-emptor to a greater extent. The rule of evidence is that the testimony of a witness, evenly related to the contesting parties, cannot be ruled out of consideration for mere relationship unless it is accompanied by hostility or mala fide against the opposite party.
10. The above-listed considerations lead to the conclusion unfavourable to the appellants. There is no force in the appeal. It is, therefore, dismissed with costa.