' The judgment in this revision is also to dispose of C.R. No. 229/1978 as both the revisions are against the same judgment of the Additional District Judge, Mardan, dated 13-3-1978.
2. The dispute in these revision concerns agricultural land measuring 463 Kanals 18 Marlas comprising of Khasras Nos. 179, 261, 262, 263 and 264 situate in village Chak Khalil, Tehsil Swabi, District Mardan, owned by Mst. Aisha Begum (respondent 2 ). By mutation No. 2399 attested on 30- 8-1973 she exchanged 4 Kanals of the aforesaid land with Jan Bahadur (respondent 1) in lieu of an equal area of his land given to her. By Mutation No. 2400 attested on the same date 459 Kanals 18 Marlas were sold by Mst. Aisha Begum in favour of Jan Bahadur for a sum of Rs. 1,56,600. The sale was pre-empted by Muhammad Yousaf Khan (petitioner) alleging that in fact that entire land measuring 463 Kanals 18 Marlas had been sold in favour of Jan Bahadur and the alleged exchange of 4 Kanals was a fictitious transaction. Another suit pre-empting the exchange of 4 Kanals was also instituted alleging that it was in fact a sale. The superior right of pre-emption was claimed by the plaintiff as he was contiguous owner of the land and also a participator in the immunities. Both the suits were consolidated and tried together by the learned Civil Judge, Mardan.
3. In view of the evidence produced by the parties the finding of the trial Court was that in fact the land sold to respondent 1 was 459 Kanals 18 Marlas and the remaining 4 Kanals were given to him by exchange by Mst. Aisha Begum. Regarding the objection that Namdar, General Attorney of Mst.
Aisha Begum had no authority to enter into the exchange transaction as no such power was expressly given to him by the power-of-attorney, it was held that:- "A reference of the general power-of-attorney in favour of Namdar, would reveal that the executant has not specifically stated that Namdar cannot enter into exchange transaction. When Namdar was not specifically prohibited to enter into exchange transaction then as a general attorney he had the authority to enter into exchange transaction."
' The suits filed by the plaintiff were, therefore, dismissed on 18-11-1975. Muhammad Yousaf Khan plaintiff feeling aggrieved filed two separate appeals before the Additional District Judge, Mardan.
The vendee also filed cross-objections on the ground that Sultan Muhammad Khan Advocate, counsel for the plaintiff, had no authority to institute and pursue the suit on behalf of the plaintiff who was living abroad. The learned appellate Court also came to the same conclusion that the exchange was valid and at the most it was a device resorted to by the vendee to safeguard his property against pre-emption. Reliance was placed on a decision reported in PLD 1961 Pesh.
63. Regarding the objection of the plaintiff that Namdar Khan, attorney of respondent 2, was not competent to enter into the exchange transaction as he was not authorised by the power-of- attorney, the learned Additional District Judge was of the view that:- "Respondent 2 had executed a general power-of-attorney in favour of Namdar and he is authorised to enter and attest mutations and do other things for respondent No. 2."
' Regarding cross-objections it was held that the counsel of the plaintiff was duly authorised by a Wakalatnama and the suit was competently filed on behalf of the plaintiff. The appeals and the cross-objections were, therefore, dismissed on 13-3-1978.
4. In support of the revision it is contended that the vendor had in fact sold the entire land measuring 463 Kanals 18 Marlas in favour of Jan Bahadur and the alleged exchange of 4 Kanals in his favour by Mst. Aisha Begum was a fictitious transaction since both the Mutations regarding the sale and exchange were attested on the same date i.e. 30-8-1973. It is further contended that the sale consideration of Rs. 1,56,600 also included the sale price of 4 Kanals of land allegedly given to the vendee by exchange. From the perusal of the record it appears that by Mutation No. 2399, 4 Kanals of land was given by exchange to Jan Bahadur by Mst. Aisha Begum in lieu of an equal area of land of Jan Bahadur transferred in her favour by Mutation No. 2398. Both the aforesaid Mutations were entered on 8-8-1973 and the Sale Mutation No. 2400 was entered on 15-8-1973. Later on all the mentioned Mutations were attested on 30-8-1973. The exchange Mutations were attested at village Chak Khalil whereas the sale Mutation was attested in village Speen Kani. In their written statements both the defendants pleaded that the aforesaid exchange was validly made and the land sold in favour of the vendee was 459 Kanals 18 Marlas and not 463 Kanals 18 Marlas. The Patwari Halqa and respondent 1 also supported the aforesaid transactions in their evidence. In rebuttal only the counsel of the plaintiff appeared as a witness and admitted that the transactions were not made in his presence. The learned counsel not being a witness to the controversial facts, his evidence was of little value to the plaintiff. In these circumstances it is difficult to hold that both the sale and exchange were in fact one transaction and no exchange was effected in favour of respondent 1. Though it was rightly found by the Courts below that the exchange was resorted to as a devide by the vendee to safeguard the land purchased by him from the prospective pre-emption suit. There is no evidence to prove that the exchange transaction was in fact a disguise and not a device. It is well established that the law does not probibit any legitimate device by the vendee to safeguard his property against the possibility of any pre-emption suit. Therefore, by entering into the exchange transaction no illegality was committed by the vendee and the finding of the Courts below in this regard is well- founded. The learned counsel for the petitioner also contended that the general power-of-attorney executed in favour of Namdar by Mst. Aisha did not authorise him to exchange her property and thus by entering into the said transaction he had exceeded his authority and hence the exchange was liable to be struckdown on this ground. The finding to the contrary of the Courts below was rightly assailed by the learned counsel. In reply it was urged that although no specific power was given to the attorney by respondent 2 for effecting the exchange, she never repudiated the transaction effected by her attorney in favour of respondent 1 and that even if the act of the attorney was unauthorised it stood ratified by respondent 2 by her conduct. Reliance is placed on section 196 of the Contract Act, 1872, which provides that where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts, if he ratifies them the same effect will follow as if they had been performed by his authority.
Thus it is contended that since the principal had accepted the exchange transaction effected by her agent unconditionally the transaction stood ratified by implication. The learned counsel appearing for Mst. Aisha Begum also stated that having come to know of the exchange transaction she did not raise any objection and accepted the same as validly made, therefore, the exchange transaction stood ratified and would stand on the same footing as an act done with previous authority. In reply the learned counsel for the petitioner contended that even if the principle of ratification was applicable there was a legal impediment as contained in section 200 of the Contract Act inasmuch as there could be no ratification of the acts done without authority which had the effect of terminating any right or interest of a third person. Section 200 of the Contract Act is in the following terms:- "An act done by one person on behalf of another without such other persons' authority, which, if done with authority, would have the effect of subjecting a third person to damages, or of terminating any right or interest of a third person, cannot, by ratification, be made to have such effect."
'The argument is that since the preferential right of pre-emption of the plaintiff was defeated by resorting to exchange of 4 Kanals of land in favour of the vendee by the agent of the vendor who was not specifically authorised to do so, the act of ratification by the principal certainly had the effect of terminating the right of pre-emption vested in the plaintiff. The argument is not without force. The right of pre-emption, no doubt, is not a right to or in immovable but is certainly a right to acquire the property on fulfilment of certain conditions and though it vests in the pre-emptor and not in the property sold is all the same a right and its infringement by an unuthorised act of an agent would certainly invoke the principle embodied in section 200 of the Contract Act which uses only the words "right or interest of a third person" without containing any further qualification as to the right affected thereby. The rule contained in the section is an exception to the general rule of ratification. The ratification, therefore, would have no effect where the right or interest of a third person is to be affected.
In AIR 1941 Mad. 6 it was held that the provisions of the Contract Act relating to agency are not meant to be exhaustive and section 200 or other provisions relating to ratification do not affect the general principle of law of agency that the general rule as to ratification would not apply when it would affect the rights of other parties. In this view of the matter even if the contention of the learned counsel for the respondents prevailed that the exchange transaction in favour of respondent 1 stood validated by ratification on the part of respondent 2, no benefit of the exchange could be extended to the vendee (respondent 1) in view of the principle laid down in section 200 of the Contract Act.
5. Once the exchange transaction is eliminated the vendee no longer remains a co-sharer in the property and the plaintiff, being a contiguous owner, could successfully maintain his suit. However, from Akkas Shajara Kishtwar (Exh. P.W.1/3) it is clear that the land of the plaintiff bearing Khasra No. 183 etc. is contiguous to only one Khasras Nos. in dispute i.e. Khasra No.
179. The other Khasra numbers 261, 262, 263 and 264 are separated from Khasra No. 179 by Khasra No. 260 which is 'Ghair Mumkin Kends'. According to the Jamabandi of 1968-69 (Exh. P.W. 1/D1)
Khasra No. 260 belongs to Government of Pakistan. The assertion of the plaintiff that he is a contiguous owner of all the Khasra numbers in suit not being correct, he can successfully pre-empt only Khasra No. 179 of which he is a contiguous owner. In a Full Bench decision reported in PLD 1970 Pesh. 160 it was held that:- "If a person sells, out of his holding, land comprised in more than one Khasra number and they are all contiguous to each other thereby forming a compact block, the sale is pre-emptible for the reason that on account of the compactness the block will be a property in itself. If on the other hand, the owner of a holding sells different portions of the same property and they are not contiguous to each other, then in that case, since the portions do not adjoin each other and are not contiguous, they would not form a block of the property and the pre-emptor will have the right to pre-empt only that portion of the property which is contiguous to that of his own."
' To support the other assertion of the plaintiff that he is also a participator in the immunities there is no evidence worth the name on the file.
6. For the aforsaid reasons the question as to the powers of an unauthorised agent had not been correctly determined and hence the decisions arrived at being in disregard of the law applicable to the case would be open to interference in revision. The revisions are, therefore, accepted and the plaintiff (petitioner) is granted the decree prayed for only in regard to Khasra No. 179 measuring 123 Kanals 16 Marlas out of the suit land on payment of Rs. 42,154 as pre-emption money with no order as to costs. The suit regarding the other Khasra number remains dismissed.
' The pre-emtpion money to be deposite in the trial Court within a month if not already deposited.
Otherwise the plaintiff's entire suit shall stand dismissed with costs.