' SARDAR SAID MUHAMMAD KHAN, J--The above-entitled two appeals have been directed against the judgment and decree of the High Court, dated 18-10-1979, whereby the appeal filed by Wazir Hussain, defendant, was partly accepted.
2. The brief facts which have given rise to these appeals are that land comprising survey No.966, measuring 126 Kanals 6 Marlas situated in village Kutehra Anderla, District Kotli, was recorded in the Revenue record as 'Shamlat Deh' and Sain and Hassana were recorded as occupancy tenants in equal shares. The possession of the land in the Revenue record was shown that of Hassana exclusively. Hassana transferred occupancy rights in whole of the land measuring 126 Kanals 6 Marlas to his two sons, Muhammad Siddique, appellant, and Rafique (now deceased) through a registered gift-deed on 26-2-1960. Subsequently, Sain, the other co-sharer in the occupancy tenancy, executed a sale-deed to the extent of 1/2 share of the occupancy tenancy and 1/2 share of 'Ghrat' in favour of one Masud and two others on 24-3-1964. The said sale-deed was challenged by way of declaratory suit by Muhammad Siddique and one other, alleging that the whole of the land comprising Survey No.966, measuring 126 Kanals 6 Marlas had fallen to the share of their father Hassana, who had transferred the same vide the aforesaid gift-deed and had also transferred the possession to the donees. It was further averred in the plaint that subsequently, Sain, who was not in possession of the aforesaid piece of land and had no interest therein, transferred 1/2 of the occupancy right in land comprising Survey No.966 alongwith 1/2 share of the 'Ghrat' situated in the suit land, through a sale-deed dated 24-3-1964, to Masud and two others, who were after forcible dispossession of the plaintiffs. Thus, a prayer seeking perpetual injunction restraining the defendants-vendees from dispossessing the plaintiffs from the suit land was also made.ln alternative, relief in the form of decree on the basis of preferential right of pre-emption was sought. The defendants contested the suit on all grounds. Subsequently, an application was made in the trial Court alleging that the defendants vendees had dispossessed the plaintiffs from the suit land and as such relief in the form of decree for possession was also sought to be added in the plaint. The amendment application was allowed. While the suit was still pending in the trial Court, Masud and others, the vendees, transferred the suit land in favour of Wazir Hussain, appellant, through a registered sale-deed on 21-12-1967; consequently, the second vendee was also arrayed in the line of the defendants and some additional issues were also framed in the light of the amended pleadings of the parties.
3. The trial Court passed a declaratory decree with possession holding that Hassana was in exclusive possession of the whole of the land comprising Survey No.966 as a co-sharer and as such he had validly made the gift-deed in favour of Muhammad Siddique and one other. The trial Court also held that Sain, the co-sharer, was not competent to, execute the sale-deed in favour of Masud and others because the land in dispute had never been in his possession and had not fallen to his share. Thus, the sale-deed in favour of first vendees, Masud and others, and the subsequent sale-deed in favour of Wazir Hausain, appellant, were held void and inoperative against the interest of the plaintiffs. As the learned Sub-Judge passed a declaratory decree for possession in favour of plaintiffs, he did not decide the issues relating to the alternative prayer for decree on the basis of right of pre-emption except that he gave his finding on issue No.8 to the effect that Wazir Hussain, the second vendee, could not prove that he was a 'displaced person' as a result of construction of Mangla Dam, within the meaning of the Notification issued under section 6(2) of the Right of Prior Purchase Act, and as such he was protected from the exercise of right of pre-emption by the plaintiffs.
4. Wazir Hussain went up in appeal before the District Judge, who set aside the declaratory decree passed by the trial Court in favour of Muhammad Siddique and another holding that the sale-deed executed by Sain in favour of Masud and another was valid, but the second sale-deed in favour of Wazir Hussain was a sham transaction and was merely executed to defeat the suit of the plaintiffs and, therefore, it was void and inoperative against the interest of the plaintiffs. However, the District Judge passed a decree in favour of the plaintiffs on the basis of right of pre-emption on the payment of Rs.8,278. The learned District Judge also gave the findings that Wazir Hussain had failed to prove that he was a 'displaced person' as envisaged in the relevant Notification issued under section 6(2) of the Right of Prior Purchase Act. Wazir Hussain preferred second appeal before the High Court against the judgment and decree of the District Judge. The learned Single Judge in the High Court set aside the pre-emption decree passed by the District Judge in favour of the plaintiffs holding that Wazir Hussain, the second vendee, was 'affected' by the construction of Mangla Dam; as such he stood protected under the Notification issued by the Government and right of pre-emption was not available against him. However, the learned Single Judge opined that Hassana, the donor, was in possession of the suit land measuring 126 Kanals 6 Marlas as co-sharer, but the total land of Hassana and Sain in the village being to the tune of 188 Kanals 6 Marlas, Hassana's share in the joint holding came to 94 Kanals 3 Marlas and thus the gift-deed executed by him was in excess of his share to the tune of 32 Kanals 3 Marlas. On the above reasoning, the learned Single Judge in the High Court came to the conclusion that out of the land comprising Survey No.966, Sain was competent to transfer the land to the tune of 32 Kanals 3 Marlas and as such the sale-deed executed by him to the extent of 63 Kanals in favour of Masud and others was in excess of his share by 31 Kanals. Therefore, the learned Single Judge opined that the sale-deed in favour of Masud and others and subsequent sale-deed in favour of Wazir Hussain was inoperative against the interests of the plaintiffs to the tune of 31 Kanals. Both the parties felt aggrieved by the aforesaid findings of the High Court and preferred separate appeals, which are being disposed of by this Single judgment.
5. The first point which needs determination is as to whether the appellants, Muhammad Siddique and others, could claim any relief in the High Court on the ground that the sale-deed in favour of Masud and others was void on the grounds set out in their plaint. The declaratory decree passed in favour of Masud and others by the trial Court was set aside by the District Judge and instead a decree in their favour was passed on the basis of prior right of purchase. The plaintiffs did not assail the findings of the District Judge by way of an appeal or cross-objections in the High Court.
Thus, it would be taken to mean that they accepted the findings of the District Judge that Sain, the co-sharer, was competent to transfer the land in favour of Masud and others to the extent of his 1/2 share. The learned Single Judge in the High Court was not competent to re-open the question suo motu as to whether the sale-deed in favour of Masud and others was valid or invalid, while hearing the appeal filed by Wazir Hussain against the pre-emption decree passed in favour of the plaintiffs.
The High Court should have confined itself only to the question of the validity of the pre-emption decree passed in favour of the plaintiffs in view of the fact that the plaintiffs did not challenge the findings of the District Judge on the matter in the High Court. There is yet another aspect of the matter; the High Court while dealing with the validity of the sale-deed in favour of Masud and others also overlooked the fact that no plea was taken by any of the parties to the proceedings that gift-deed executed by Hassana in favour of his sons was in excess of his overall entitlement in the joint holding. There was no issue on the point and as such the findings with regard to the total ownership of Hassana and Sain in the village or for that matter in the 'khewat' could not be given.
6. It is well-settled principle of law that the point requiring investigation into the facts, if not raised in the pleadings, evidence on such point cannot be looked into. Even otherwise, a party cannot be permitted to succeed on a case which such party has not set up in his pleadings. In the aforesaid circumstances, the findings of the High Court that Hassana made gift-deed in excess of his share or that Sain executed sale-deed in favour of Masud and others in excess of his share were not only uncalled for but were also violative of the norms of procedural law.
7. Now the question which needs to be resolved is as to whether the pre-emption decree passed by the District Judge in favour of the plaintiffs was a valid decree. Raja Muhammad Siddique Khan, the learned counsel for the plaintiffs-pre-emptors, has argued that the learned Single Judge in the High Court has committed an error in holding that Wazir Hussain, the second vendee, being an 'affected person' on account of the construction of Mangla Dam was protected by the relevant Notifica tion issued under section 6(2) of the Right of Prior Purchase Act; whereby the Government took away the right of exercise of prior purchase in such cases. He has argued that it was incumbent upon Wazir Hussain, the second vendee, to produce a certificate from Commis sioner, Mangla Dam to the effect that he was affected by the construction of Mangla Dam to the extent that he was a 'displaced person' as envisaged in the relevant Notification No.55-66/SL/77, dated 8th January, 1977. He has drawn our attention to the certificate produced by Wazir Hussain, respondent, in the trial Court and has argued that it merely says that the land belonging to Wazir Hussain and his brother, Nazir Hussain, was 'being acquired' for the construction of Mangla Dam.
There is nothing on the record to show that it was acquired and thus Wazir Hussain stood affected to the extent that he was displaced by such acquisition, as required by the relevant Notification.
8. Maulvi Siraj-ul-Haq, the learned counsel for Wazir Hussain, did riot seriously contest the arguments advanced by the learned counsel for the plaintiffs-appellants so far as those pertained to the validity of the said certificate. However, he has argued that the question with regard to the fact that Wazir Hussain was 'affected' by the construction of Mangla Dam, within the meaning of the relevant Notification, cannot be re-agitated because the counsel for the plaintiffs in the High Court admitted that Wazir Hussain was so affected as is evident from the High Court's order dated 18-12-1978. In alternative, he has argued that another certificate was produced by Wazir Hussain in the High Court which shows that Wazir Hussain was a 'displaced person' on account of construction of Mangla Dam, as envisaged under the relevant Notification .
9. Coming to the argument with regard to the admission of the learned counsel, it may be observed that in the order of the High Court dated 18-12-1978, it has been recorded that the counsel for the respondents preferred to accept that the defendant (Wazir Hussain) was affected by the contruction of the Mangla Dam than to have the case remanded. The learned counsel, Raja Muhammad Siddique Khan, has argued that such an admission is of no avail to the case of Wazir Hussain, defendant; firstly, because the admission appears to have been made by the counsel under pressure, and secondly because in any case the admission was only to the effect that Wazir Hussain was 'affected' by the construction of Mangla Dam and not that he was also 'displaced' as stipulated in the relevant Notification on the subject. The learned counsel has cited two authorities in support of his contentions: Ghulam Rubani and others v. Maqbool Khan and others PLD 1971 Azad J & K 68 and Bahadon v. Phatti 1980 CLC 1533.
' In the former case the scope of the meanings of expression 'displaced persons' in context of the relevant Notification was considered and it was held that it implies those persons who had been expelled or removed from their habitual place of residence or they were obliged to leave their habitual place of residence as consequence of construction of Mangla Dam and that its scope cannot be enlarged to include the persons who had not been displaced from their habitual places of residence despite the fact that their property had been partially acquired for the construction of Mangla Dam. In the latter case, it was held that admission of a pleader cannot be said to be binding on the client if the same was not made in proper conduct of the case and the concession was erroneously made by the Advocate conducting the case.
10. It may be observed that there is nothing on the record to show that the learned counsel for the plaintiffs made a concession to the opposite party under an erroneous belief or that in fact he was pressurised by the Court, as contended by the learned counsel for the plaintiffs-appellants, to make such an admission. However, the fact remains that admission was only to the effect that Wazir Hussain was 'affected' by the construction of Mangla Dam. The relevant order passed by the High Court nowhere states that the learned counsel for the plaintiffs admitted that Wazir Hussain was affected by the construction of Mangla Dam to the extent that he was 'displaced' within the meanings of the relevant Notification. The Notification under which Wazir Hussain seeks protection clearly states that a subsequent purchaser must prove that he was 'displaced person' due to the construction of Mangla Dam. The admission made by the counsel for the plaintiffs that Wazir Hussain was affected by the construction of Mangla Dam cannot be taken to meanthat Wazir Hussain was admitted to be 'displaced' person within the meanings of Notification.
11. The Notification No.55-66/SL/77, dated 8th January, 1977, has been issued in continuation of previous Notifications No.2591-94/SL/72, dated 18th November, 1972, and No.1727-30/SL/76, dated 25th April, 1976. Read together, these Notifications clearly show that Wazir Hussain had to prove that he was displaced due to the construction of Mangla Dam, by producing a certificate from the Commissioner, Mangla Dam. Thus, the admission of the learned counsel that Wazir Hussain was affected by the construction of Mangla Dam does not help the case of Wazir Hussain, appellant.
12. So far as the certificate issued by the Commissioner, Mangla Dam produced in the High Court is concerned, that has not been relied even by the learned Single Judge in the High Court. A perusal of the record shows that on 22-1-1977, the said certificate was produced alongwith an application that the same may be admitted as an additional evidence. The application was opposed by the counsel for the plaintiffs, and the case was fixed for arguments. It appears from the perusal of the subsequent interim orders that no arguments were heard on the point; perhaps the matter was not pressed any further by the counsel for Wazir Hussain. Therefore, no reliance can be placed on the aforesaid certificate, which was not admitted into evidence, and was not relied .upon by the High Court. It follows from what has been stated above that Wazir Hussain has failed to prove, as has been held by the trial Court and the first appellate Court, that he was affected by the construction of Mangla Dam in a manner that he comes within the purview of 'displaced persons' as envisaged under the relevant Notifi cations. It has been argued by the learned counsel for the appellant that there is other oral evidence on the record to show that in fact Wazir Hussain was displaced by the construction of Mangla Dam. A number of witnesses have been examined by the plaintiffs that Wazir Hussain, who happened to be a refugee from the Indian held, Kashmir, had no allotment of evacuee property or house in the area which was acquired for the construction of Mangla Dam. In rebuttal Nawab Din, a cousin of Wazir Hussain, has stated that Wazir Hussain and his brother had the allotment of evacuee land in their favour in Fatehpur village and had also constructed a house there, which were submerged in water on account of construction of Mangla Dam. We are of the opinion that as Wazir Hussain did not put up himself in the witness-box to prove the aforesaid fact, nor he produced any documentary evidence that he owned land and house in Fatehpur, merely the statement of Nawab Din, who happened to be closely related to Wazir Hussain, does not prove the fact that Wazir Hussain was 'displaced' due to the construction of Mangla Dam. Even otherwise, we are of the opinion that mode of proof of the fact as to whether a person was displaced by the construction of Mangla Dam has been prescribed in the Notification itself and as such the fact cannot be held to have been proved on the basis of oral evidence. In view of what has been stated above, we confirm the findings of the trial Court as well as the first appellate Court that Wazir Hussain failed to prove that he was 'affected' by the construction of Mangla Dam in a manner that he falls within the category of 'displaced persons' as envisaged under the relevant Notification.
13. The next question which falls for determination is that if for the sake of argument it be assumed that Wazir Hussain is proved to be a 'displaced person' within the meaning of the relevant Notification, would the Notification in question afford him the protection against the suit for pre- emption? Maulvi Siraj-ul-Haq, the learned counsel for Wazir Hussain, has argued that Notification No.55-66/SL/77, dated 8th January, 1977, has been expressly made to operate retrospectively and as such the plaintiffs could not succeed in getting the decree of pre-emption against Wazir Hussain, the second vendee. The learned counsel has cited various authorities in support of his contention. We propose to consider the same as under:- ' In Pandit Harbhagwan Das v. Sardar Partap Singh AIR 1938 Lah. 242, it was held that if before the institution of the suit for pre-emption, the original vendee transfers the property to a person claiming a right equal or superior to that of the pre-emptor, such vendee cannot be legally ousted.
' In Thakur Madho Singh and another v. Lt. James R.R. Skinner and another AIR 1914 Lah. 433, it was held that rule of lis pendens envisaged under section 52 of the Transfer of Property Act applies to the pre-emption cases and its effect is not to annul the conveyance but only to render it subservient to the rights of the parties engaged in litigation. It was further opined that its effect is only to bind the transferee if he happens to be a third person with any decree that is made in the suit, even if he is not a party to it. The main question involved in the case was as to whether a vendee can defeat the right of the pre-emptor by improving his status at any time before the passing of the decree in the pre-emption suit by the trial Court and it' was opined that the vendee can defeat the right of the pre-emptor by improving his status at any time before passing of the decree in the pre-emption suit by the trial Court.
In Sahib Din v. Ch. Fazal Dad Khan PLD 1967 Azad J & K 7 it was held that a pre-emptor in order to succeed must possess his preferential right not only on the date of sale but also on the date of the institution of the suit as also on the date of the decree. The original Court not incorporating such right in decree, during the pendency of the appeal a Notification was issued under section 6 (2) of the Right of Prior Purchase Act, whereby the right of pre-emption within certain area was taken away. It was held that as the right of pre-emption had not merged in the decree, the right was no longer enforceable and that the Notification would operate retrospectively even regarding sales which took place before such Notification.
' In Mst. Bibi Jan v. Miss R.A. Monny PLD 1961 SC 69, it was held that ordinarily a Notification issued should be deemed to come into effect on the date when it is published and not from an anterior date. But whether it should have any retrospective or retroactive effect would depend entirely on the terms of the Notification itself and the statutory mandate behind it. It is only when the words of a statute are not plain that the maxim "omnis nova constitutio futuris formam imponere debet non paeteritis" (which means that, except in special cases, the new law ought to be construed so as to interfere as little as possible with vested rights) would be applied. The words of the Notifi cation were interpreted to mean that all rights of pre-emption would cease to exist, in the area mentioned in the Notification, whether they pertained to sales that had already taken place or were sold after the Notification. The only exception recognised to the aforesaid rule was in favour of cases in which decrees had already been obtained by the pre-emptors prior to the Notification.
' In Shaker Khan v. Muhammad Lal PLD 1978 SC (A J & K) 126, it was held that Notification issued under section 6 (2) of the Right of Prior Purchase Act was fatal to all pre-emption suits whether pre-existing at the time of Notification or brought after the issue of Notification, except the cases where the right of prior purchase had been incorporated in a decree in favour of a pre-empthr. The decree of pre-emption having been passed after the Notification was held to be invalid. It was further opined that pre-emptor must possess the superior right of pre-emption at the time of sale, the institution of the suit and at the time of passing of the decree.
' In Muhammad Lal vs. Mohko PLD 1979 SC (AJK) 15, it was held that the vendee can create situation to enable himself to say that the pre-emptor has lost his right of pre-emption on the ground that the vendee has equal or superior right of pre-emption to that of pre emptor or that there exists no such right under the provision of law or Notification. The suit of the plaintiff/pre-emptor was dismissed by the trial Court as well as the first appellate Court on the ground that Notification issued under section 6 (2) of the Right of Prior Purchase Act, had taken away the right of pre- emption. However, the learned Single Judge in the High Court found .that certificate visualised in the relevant Notification was defective and as such it was not proved that the second vendee was a displaced person, affected by the construction of the Mangla Dam. On appeal to the Supreme Court, the judgment and decree of the High Court were maintained on the ground that plaintiff/ pre-emptor had 'ailed to prove by producing requisite certificate from Commissioner, Mangla Dam that he was a displaced person as evisaged under the provision of the Notification.
' In Ghualm Rubani v. Maqbool Khan, it was held that Notification dated 15-10-1964 would operate retrospectively with the only exception where decree had been passed by the trial Court in favour of the pre-emption. The scope of the meanings of the word "displaced person' was also considered and it was held that it meant those persons who had been expelled or removed from their habitual place of residence or were obliged to leave their habitual place of residence as consequence of construction of Mangla Darn and that its scope could not be enlarged to include the persons who had not been displaced from their habitual place of residence despite the fact that their property had been partially acquired for construction of Mangla Dam.
' In Mool Chand v. Ganga Jal & others AIR 1930 Lah. 356, it was held that the rule of lis pendens applies to pre-emption, but it does not affect the validity of the sale effected by the vendee during the pendency of the pre-emption suit to the person possessing a right of pre-emption equal to that of the pre-emptor.
14. It is evident from the survey of the case-law cited by the learned counsel for the defendant- appellant that Notification taking away the right of pre-emption would operate retrospectively even if it is not given retrospective effect expressly. However, in cases referred to above and reported as Mst. Bibi Jan v. Miss R.A. Monny PLD 1961 SC 69, Sahib Din v. Ch. Fazal Dad Khan PLD 1967 ,Azad J & K 7 and Shakar Khan v. Muhammad Lal PLD 1978 SC (A J & K) 126, it has been stated that Notification taking away the right of pre-emption would not affect the cases in which the decree has already been passed in favour of the pre-emptor. No authority has been cited to substantiate the contention that a Notification taking away the right of pre-emption would be operative even if the right of pre-emption has been merged in decree of pre-emption in favour of the pre-emptor. Therefore, the authorities relied by the learned counsel for the defendant- appellant in support of his contention are not only distinguishable but some of them rebut the contentions of the learned counsel for the defendant-appellant that the relevant Notification in the instant case would operate retrospectively despite the fact that when the same was issued, the decree on the basis of right of pre-emption had already been passed in favour of the pre-emptor by the District Judge. The learned counsel for Wazir Hussain has tried to wriggle out of the difficulty by arguing that as Notification dated 8th January, 1977 has been given retrospective effect, the decree passed by the District Judge would be of no avail to the pre-emptor. The question is as to whether the right of pre-emption which had already been merged in the decree passed by the District Judge could be taken away by giving the Notification in question a retrospective effect. We are of the opinion that the right of pre-emption having been merged in the pre-emption decree in favour of the plaintiffs could not be taken away by giving retrospective effect to the Notification issued under section 6 (2) of the Right of Prior Purchase Act, as in that case it would travel beyond the scope of the said provision. Section 6(2) of the Right of Prior Purchase Act empowers the Government only to take away the right of pre-emption in case of certain sales. It does not stipulate that if a right of pre-emption has been merged in the decree of the Court such decree can be annulled by a Notification under section 6 (2) of the Right of Prior Purchase Act. If a right of pre-emption has already been successfully asserted and has matured in form of a decree of pre- emption, how it can be said that Notification merely takes away the right of pre-emption, rather it would imply that Notification puts at naught the decree of the Court and no such power vests in the Government under section 6 (2) of the Right of Prior Purchase Act. It may be mentioned here that the Notification No.240-50/SL/77, dated 30th January, 1977 which has been issued in continuation of previous Notifications including the Notification dated 8th January, 1977, under which Wazir Hussain claims protection, speci fically says that "nothing in this Notification shall be deemed to affect any decree passed in favour of the pre-emptors prior to the date of this Notification". It means that the Government was conscious of the fact that it had no power to annul the decrees already passed in favour of the pre-emptors, even if such decrees were under challenge by way of appeals.
15. It follows from what has been stated that if the right of pre emption stands already incorporated in the decree of the Court; such right cannot be taken away by a Notification issued under section 6 (2) of the Right of Prior Purchase Act, irrespective of the fact whether such ,Notification has been specifically given retrospective effect or not. In such cases, the Notification so far as it relates to giving the same retrospective effect would be deemed to be inoperative and non existent.
16. Now the next point which was subject of controversy at bar was as to whether the sale-deed in favour of Wazir Hussain was a sham transaction and such was inoperative against the right of the pre emptors. The learned Sub-Judge and the District Judge held that sale-deed in favour of Wazir Hussain was executed with an ulterior motive so as to defeat the suit of pre-emption filed by the plaintiffs and as such it was inoperative against the interests of the plaintiffs. The learned Single Judge in the High Court has erroneously recorded in his judgment that the findings of the trial Court and the first appellate Court that the sale-deed in favour of Wazir Hussain was a collusive transaction is not sustainable because there was no such averment in the pleadings of the plaintiffs/pre-emptors, nor there was any issue on the point. The learned counsel for Wazir Hussain conceded that not only the plea was taken by the plaintiffs/pre-emptors, but issue No.8 was also framed on the point by the trial Court. However, the learned counsel for Wazir Hussain has contended that findings of the trial Court and the first appellate Court on issue No.8 are incorrect because the only reason given by these Courts in support of their findings is that Muhammad Hussain, the father of Masud one of the vendors, was father-in-law of Wazir Hussain and as such he entered into a fictitious transaction with Wazir Hussain, his son-in-law, so as to defeat the pre- emption suit. The learned counsel has maintained that mere relationship is not sufficient to hold that the transaction was either collusive, mala fide or fictitious and that the parties did not intend that title in the suit land should pass to Wazir Hussain. It may be observed here that the land was not sold to Wazir Hussain only by Masud but it was sold by all the three owners, namely, Masud, Fazal Dad and Atta Muhammad. There is nothing on the record to show as to how Fazal Dad and Atta Muhammad could have become a party to the alleged collusive transaction between Wazir Hussain on one hand and Masud on the other. There is also no evidence on the record that Fazal Dad or Atta Muhammad enjoyed the produce of the land even after executing the sale-deed.
Some witnesses have been produced by the plaintiffs to the effect that the suit land remained in the possession of Muhammad Hussain, the father of minor Masud, even after the sale to Wazir Hussain but there is ample evidence in rebuttal which shows that after the execution of the second sale-deed, Nawab Din, a cousin of Wazir Hussain, cultivated the land as tenant under Wazir Hussain on the payment of share of produce to him. The statement of Nawab Din is corroborated by the copy of Khasra Girdawari for the year 1967, Exh.P.Z., in which Muhammad Hussain is shown tenant under Wazir Hussain on payment of Feroz Din and Muhammad Fazil, who were examined as witnesses for the defendants, have also corroborated the statement of Nawab Din by stating that they have been cultivating the land for Nawab Din who in turn paid share of the produce to Wazir Hussain. The trial Court as well as the first appellate Court did not consider the evidence on record to the effect that in fact after the sale-deed in favour of Wazir Hussain, the land did not remain in possession of Muhammad Hussain, the father of Masud minor, or other two vendors, Fazal Dad and Atta Muhammad. It is correct that Muhammad Hussain, the father-in-law of Wazir Hussain, executed sale-deed in favour of Wazir Hussain as guardian for Masud, his minor son, and in capacity of attorney of Fazal Dad and Atta Muhammad, the other two vendors, but this fact is not sufficient to hold that the sale-deed in favour of Wazir Hussain was merely a paper transaction and the vendor never intended that the title in the suit land should pass to Wazir Hussain. Under these circumstances, we are not persuaded to affirm the findings of the trial Court and the first appellate Court to the effect that the sale-deed in favour of Wazir Hussain was the result of collusion between the parties to the transaction and as such it was fictitious and sham transaction.
17. Now the next question arises, as to what is the effect of the sale-deed executed in favour of Wazir Hussain on the suit of pre-emption. Admittedly the transfer was made during the pendency of the suit and Wazir Hussain has failed to prove that he had either equal or superior right of purchase as compared with the plaintiffs or that no right of pre-emption was available against him in view of the aforesaid Notifi cation. The sale-deed in favour of Wazir Hussain was also executed after the expiry of period of limitation for filing the suit for pre-emption. Under these circumstances, we have no hesitation in holding that the principle of lis pendens is applicable to the instant case with full force and at the most, Wazir Hussain can be regarded as' successor in interest of vendors, Masud and others. Thus, sale in his favour does not destroy the right of prior purchase of the plaintiffs.
' The net result of the above discussion is that accepting the appeal of Muhammad Siddique and others, we set aside the judgment and decree of the High Court and restore the decree of pre- emption passed in their favour by the District Judge. The appeal filed by Wazir Hussain also succeeds to the extent that declaratory decree passed by the High Court in terms that the sale- deed executed by Sain was invalid to the extent of 31 Kanals is not sustainable and is hereby set aside. In view of the peculiar circumstances of the case and the difficult law points involved, we make no order as to the costs.